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APPROVED

THE HIGH COURT

[2020] IEHC 381

2010 No. 65 SA

2010 No. 66 SA

IN THE MATTER OF SECTION 8 OF THE SOLICITORS (AMENDMENT) ACT 1960

(AS AMENDED)

BETWEEN

THE LAW SOCIETY OF IRELAND

AND

DANIEL COLEMAN

APPLICANT

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 7 September 2020

2

3

INTRODUCTION

name off the Roll of Solicitors. The application is brought at the instance of the Law

Society pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as

amended). The High Court’s jurisdiction is set out at section 8 of the same Act. The

“strike off” application is made on foot of two separate recommendations of the

Disciplinary Tribunal of the Law Society. These recommendations had been made in the

first quarter of 2010. The explanation for the lapse of time between then and now is as

follows. An earlier order of the High Court (Kearns P.) striking off the solicitor in July

2010 has since been overturned by the Supreme Court by order dated 1 May 2019, and

the “strike off” application has been remitted to the High Court. The application had

been assigned to me by the then President of the High Court (Kelly P.) for hearing in

March 2020. The hearing had been disrupted by the public health restrictions introduced

in respect of the coronavirus disease pandemic.

Solicitor seeking an extension of time within which to bring a statutory appeal against

the findings of the Disciplinary Tribunal. The application for an extension of time has

been refused for the reasons set out in detail in a judgment delivered on 7 April 2020,

summarised. Secondly, the precise role of the High Court under section 8 of the

Solicitors (Amendment) Act 1960 will be considered. Consideration of this issue is

4

necessary in circumstances where there is some disagreement between the parties as to

the extent to which the High Court is required to review the findings of the Disciplinary

Tribunal. This disagreement turns, to an extent, on the distinction between (i) a “strike

off” application under section 8, and (ii) a statutory appeal under section 7(13) of the

Solicitors (Amendment) Act 1960. Thirdly, the question of whether there is a sustainable

basis for the findings of the Disciplinary Tribunal will be examined. Finally, the question

of the appropriate sanction will be addressed.

5

PART I

PROCEDURAL HISTORY

Disciplinary Tribunal following two hearings in February 2010. In each instance, the

Disciplinary Tribunal recommended that the Solicitor’s name be struck off the Roll of

Solicitors. The Law Society made application to the High Court pursuant to

section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 in July 2010.

Disciplinary Tribunal. The matter thus came before the High Court solely on the basis

of the Law Society’s application seeking inter alia an order striking off the Solicitor,

i.e. there was no parallel appeal by the Solicitor before the High Court. The consequence

of this is that the ambit of the submissions which the Solicitor would have been entitled

to make to the High Court was more limited than had he brought an appeal.

26 July 2010, the Solicitor applied for an adjournment in order to instruct counsel. The

President refused the application for an adjournment, and, having heard submissions,

made an order striking the name of the Solicitor off the Roll of Solicitors. An order was

also made directing the Solicitor to pay the sum of €320,000 in restitution to St. Jarlath’s

Credit Union, Tuam.

off. This appeal was filed on 24 August 2010. (To avoid confusion, the reader should

6

bear in mind that the Supreme Court appeal is separate and distinct from the statutory

appeal against the findings of misconduct by the Disciplinary Tribunal in respect of

which the Solicitor has since applied for—but has been refused—an extension of time).

of Appeal, and at a time when the Supreme Court, being the only appellate court, had a

very heavy case load. The appeal was ultimately heard and determined in 2018. (The

order of the Supreme Court was perfected on 1 May 2019). The Solicitor has been

successful in his appeal, and the order striking his name from the Roll of Solicitors has

been vacated. The “strike off” application has been remitted to the High Court for

within which to bring an appeal to the High Court against the findings of misconduct of

the Disciplinary Tribunal. The application for an extension of time was listed for hearing

before the High Court together with the Law Society’s remitted application for an order

striking off the Solicitor.

agreed that the application for an extension of time would be heard first, and that the

court would deliver a written judgment on that application in advance of any judgment

in respect of the “strike off” application. It was further agreed that, to make efficient use

of court time, the two applications would be heard back-to-back in a single hearing

scheduled over three days. Put otherwise, rather than break off the hearing to prepare a

written judgment on the application for an extension of time to appeal, the court moved

directly to hearing the Law Society’s application. At the request of the parties, separate

judgments are to be delivered in respect of the two applications. This is to allow the

7

parties to consider their options following the delivery of the (first) judgment on the

application for an extension of time to appeal.

the (first) judgment would be delivered. Unfortunately, matters were overtaken by

events, and, as a result of the restrictions on court sittings imposed as part of the measures

designed to contain the spread of coronavirus, it was not possible to complete the hearing

of the second application in March 2020. The parties subsequently agreed, however, that

the court should deliver its judgment on the extension of time application,

notwithstanding that the submissions had not yet been completed in the “strike off”

application.

refused for the reasons detailed in a written judgment delivered on 7 April 2020,

application could be addressed by way of supplemental written submissions. Both parties

agreed that there was no necessity for any further oral submissions. The court should,

instead, determine the application on the basis of the oral submissions made in March

2020, and the supplemental written submissions filed. The Solicitor filed his submissions

on 12 June 2020, and the Law Society filed its submissions on 3 July 2020.

8

PART II

ROLE OF THE HIGH COURT

the Solicitors (Amendment) Act 1960. In particular, it is necessary to consider the extent

to which the High Court is required to review the findings of misconduct made by the

Disciplinary Tribunal.

High Court in the context of a “strike off” application under section 8, and (ii) its role in

the context of a statutory appeal under section 7(13) of the Solicitors (Amendment) Act

roles. It may assist the reader in understanding this disagreement to pause here, and to

provide an overview of the disciplinary procedures.

OVERVIEW OF DISCIPLINARY PROCEDURES

administration of justice within the meaning of Article 34 of the Constitution of Ireland.

(See In re The Solicitors Act 1954 [1960] I.R. 239). For this reason, the final decision

on the imposition of such a sanction on a solicitor in disciplinary proceedings is

exclusively a matter for the High Court (rather than for the Disciplinary Tribunal). Save

in circumstances where the Disciplinary Tribunal proposes to deal with a disciplinary

breach by the imposition of what might be described as “minor” sanctions under

section 7(9) of the Solicitors (Amendment) Act 1960, the Disciplinary Tribunal is

required to bring the matter before the High Court. More specifically, a report in

prescribed form is to be delivered to the President of the High Court by the Registrar of

9

the Disciplinary Tribunal. On the facts of the present case, the Disciplinary Tribunal had

recommended that the Solicitor’s name be struck off the Roll of Solicitors.

application is brought pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act

1960. The High Court’s jurisdiction is prescribed under section 8 of the same Act. I will

refer to this application by the shorthand “the ‘strike off’ application” in circumstances

where that is the actual order sought by the Law Society in this case. This shorthand

would not be appropriate in all cases, however, in that an application pursuant to section

7(3)(c)(iv) will not always seek a “strike off” order, but might seek a lesser form of

sanction instead.

Act 1960 was the procedural mechanism by which the disciplinary proceedings against

the Solicitor had initially come before the High Court in July 2010.

can come before the High Court. More specifically, a respondent solicitor, against whom

a finding of misconduct has been made by the Disciplinary Tribunal, has a statutory right

of appeal to the High Court against that finding. The appeal is provided for under

section 7(13) of the Solicitors (Amendment) Act 1960, as follows.

(13) A respondent solicitor may appeal to the High Court against a finding

of misconduct on his part by the Disciplinary Tribunal pursuant to

subsection (3) of this section, and the Court shall determine such

appeal when it considers the report of the Disciplinary Tribunal in

accordance with the provisions of section 8 (as substituted by the

Solicitors (Amendment) Act, 1994) of this Act, or as part of its

determination of any appeal under subsection (11) of this section, as

the case may be.

Disciplinary Tribunal. (This is so unless the respondent solicitor contends for, and the

10

Law Society concurs in, a less than full rehearing). The appeal is brought by notice of

motion returnable to the President of the High Court.

appeal, there will be two parallel motions before the High Court. First, a motion on

behalf of the Law Society seeking such order under section 8 of the Solicitors

(Amendment) Act 1960 as may be deemed by the Law Society to be appropriate and

reasonable having regard to the report and recommendation of the Disciplinary Tribunal.

Secondly, a motion on behalf of the respondent solicitor grounding their appeal.

Rules of the Superior Courts.

9.(a)(i) Where the respondent solicitor is appealing to the Court against such

finding or findings of misconduct on his or her part, the President

shall not thereupon enter upon a hearing of the motion of the Society

but shall first direct that the appeal shall proceed as a full rehearing

of the evidence laid before the Disciplinary Tribunal, unless a less

than full rehearing is contended for by the respondent solicitor and

concurred in by the Society and (if applicable) concurred in by any

person other than the Society who made the application in relation to

the respondent solicitor to the Disciplinary Tribunal and unless

agreed to by the President.

(ii) Where an appeal before the President proceeds as provided for in sub-

paragraph (i) of this paragraph of this rule, the President shall

thereafter proceed to deal with the motion of the Society having

regard to the outcome of such appeal.

first, ahead of the Law Society’s application. The Law Society’s application will then be

dealt with having regard to the outcome of the appeal.

application, has recently been considered by the Court of Appeal in Law Society of

11

“At this stage, I should say that Mr O’Sullivan did not avail of his

statutory right of appeal to the High Court against the Tribunal’s

findings, as provided for in s. 7(13) of the 1960 Act, as substituted by

s. 17 of the Solicitors (Amendment) Act 1994. His failure to appeal

against the findings of the Tribunal means that he could not challenge

them thereafter and, in particular, when the Society’s application to

the High Court for the imposition of the recommended sanctions

came before the High Court. In the event that Mr O’Sullivan had

chosen to lodge an appeal, that appeal would have been determined

ahead of the Society’s application for the imposition of the

recommended sanctions.”

paragraphs 25 and 26). The gravamen of the respondent solicitor’s complaint had been

that it was incumbent upon the High Court to make its own findings of misconduct by

hearing oral evidence, rather than simply accepting the Disciplinary Tribunal’s findings

of professional misconduct. The Court of Appeal rejected this argument as

fundamentally flawed.

“There is a fundamental flaw in [the respondent solicitor’s] argument

in this regard. It is that he failed to avail of his entitlement to a

statutory appeal against the findings of misconduct by the Tribunal

in accordance with s. 7(13) of the 1960 Act. His failure to adopt that

course means that the findings made by the Tribunal are final and

conclusive. They may not be challenged on the merits. Had [the

solicitor] sought to appeal the findings as he was entitled to do, that

re-hearing before the High Court would have taken place ahead of the

Law Society’s present application. [The solicitor] could on that

appeal have cross-examined any witnesses called by the Society. By

not bringing such an appeal, [the solicitor] cannot now be heard to

complain that on the Society’s application to the High Court for an

order imposing sanctions, he had had no opportunity to cross-

examine witnesses. […]”.

judgment).

“When the High Court hears the Society’s application for sanctions

to be imposed pursuant to s. 7(9) of the 1960 Act its function is

limited to the question of sanction. By that time, the merits of the

complaint of misconduct and the findings of the Tribunal or the High

Court (in the event of an appeal) have been determined. The High

12

Court is not obliged to impose the sanctions that the Tribunal has

recommended in its Report, and may impose whatever sanction

available under the legislation that it considers appropriate to the

misconduct found.”

considered even more recently by the Supreme Court in Law Society of Ireland v.

that the decision to strike a solicitor’s name off the Roll of Solicitors involves the

administration of justice. It is essential, therefore, that the High Court must conduct an

independent adjudication of the application before it. The fundamental role of the High

Court is explained as follows at paragraphs 58, and 60 to 61, of the judgment.

“As noted above, the Law Society is obliged to bring before the High

Court, the report and order of the Tribunal, its findings and the entire

material upon which these were arrived at. The legislature so

ordained in order to ensure that the judicial arm and not the

administrative agency would ultimately be responsible for any

findings of misconduct and the resulting sanction which followed.

Otherwise, as is evident from the decision in In Re Solicitors Act 1954

[1960] I.R. 239, the entire regime could be constitutionally impaired.

Therefore, the role of the court in this overall process is fundamental.

This in my view applies, at the level of principle, whether the court

is simply considering the Society’s application or is in addition

adjudicating upon an appeal taken by the respondent solicitor.

[…]

It is not necessary for the purposes of this decision to review the

precise parameters of the High Court’s powers or function when

determining the Society’s application. It is sufficient to say that on

the material which it ultimately has, it must be satisfied that the

Tribunal was entitled, as a matter of law to reach the findings which

it did. Precisely how and in what way it conducts this evaluation is

not germane to this appeal. When it comes to sanction or penalty

however, the Tribunal has no power to make any findings: it simply

13

makes a recommendation. Similarly so, with a person’s fitness to

practice as a solicitor: in which case it simply offers an opinion.

Arguably therefore the court’s scrutiny must be even greater when

exercising this aspect of its role.

As set out at paras. 51 and 53 above, the court, having considered the

matter may give any decision or make any order it thinks fit,

including of course exercising the powers contained in s. 8 of the

1960 Act. There is no question of being bound by an opinion

expressed or by a recommendation made by the Tribunal. In addition,

of course, the Law Society is expressly entitled to make submissions

as to what its position is on the sanction front as is the respondent

solicitor. As the case law shows, the High Court has on several

occasions departed from the recommendations made and/or have

refused to endorse the reliefs sought, by the Society. Even where

granting such relief however, it is clear that in all cases the ultimate

arbiter is the court.”

the Law Society that the absence of an appeal by a respondent solicitor relieved the High

Court of its obligation to ensure that the findings of misconduct have a “sustainable

basis”. See paragraph 90 of the judgment as follows.

“This submission in my view starts from an incorrect premise and

fails to appreciate the fundamental role which the court must play on

a referral application by the Society. Disregarding any question of

appeal, the High Court, as pointed out, must satisfy itself that the

findings of misconduct have a sustainable basis and secondly, must

form an independent view as to what sanction is appropriate to such

findings. In so doing, particularly with sanction, regard will be had

to the circumstances giving rise to such findings, the factors offered

in mitigation (if any) and the personal circumstances of the subject

solicitor (if known): all viewed within the background of the court

having to be satisfied that its decision will reflect public confidence

in the solicitor profession and overall will not negatively impact on

the administration of justice.”

paragraph 92 of the judgment).

“[…] The overall disciplinary procedure is not one which can be

looked at, as a single process or event within which fair procedures

at any stage are a sufficient compliance with the requirement of

justice. The situation at hand is much more akin to a finding of guilt

to be followed by a sentencing hearing. The subject person is entitled

to fairness on both occasions.”

14

disharmony between the judgment of the Supreme Court in Coleman and that of the Court

of Appeal, some six months earlier, in O’Sullivan. In particular, the parties addressed

me on whether the latter judgment treated the failure of a respondent solicitor to appeal

as imposing much greater constraints on the arguments which could be raised in

opposition to the Law Society’s section 8 application.

judgments in circumstances where the Court of Appeal judgment had been concerned

with findings of primary fact (which can only be set aside on appeal), whereas the

15

Supreme Court judgment is concerned with the separate question of whether findings are

legally sustainable.

between the two. Both judgments acknowledge that the High Court will have a wider

remit in cases where the respondent solicitor has brought an appeal against the findings

of misconduct. The Supreme Court in Coleman expressly refers to the wording of

Order 53, rule 9 of the Rules of the Superior Courts, and to its own judgment in

by the facts of O’Sullivan. The respondent solicitor there wished to cross-examine before

the High Court witnesses who had given evidence before the Disciplinary Tribunal. The

Court of Appeal held that this could only be done in the context of a statutory appeal

against findings of misconduct made by the Disciplinary Tribunal.

16

challenge to the jurisdiction of the Disciplinary Tribunal to entertain a complaint should

have been brought by judicial review, and not by way of appeal under section 7(11) of

the Solicitors (Amendment) Act 1960. This judgment is not directly on point, as it

concerns a different form of statutory appeal (an appeal against a minor sanction under

section 7(11)), but it is nevertheless indicative of the general principle that the manner in

which a matter comes before the High Court will influence the range of arguments which

may be made.

SUBMISSIONS ON BEHALF OF THE SOLICITOR ON HIGH COURT’S ROLE

on his behalf. The Solicitor does not seek a de novo hearing or a fresh adjudication on

the alleged misconduct. Nor does he seek to set aside any findings of primary fact.

Rather, he submits that the findings of misconduct have no “sustainable basis” by reason

of errors of law and/or fact.

particular, the following passages from the judgment of the English High Court in

17

discretion; but it is by now well-established that an appellate court

must exercise particular caution and restraint in interfering with

findings of fact, particularly where the court or tribunal has seen and

evaluated the evidence of the witnesses and/or where such findings

have been made by a specialist tribunal (AH (Sudan) v Secretary of

under section 8, between the setting aside of primary findings of fact, on the one hand,

and a challenge against errors, on the other. The Solicitor contends that the findings of

the Disciplinary Tribunal ought not to be upheld on the latter basis.

18

decisions of the superior courts. The first of these is R – v – Chief

Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344

It may be observed that, in both the reported cases and the

leading text books, this decision has not received the prominence it

plainly merits. This might be attributable to its appearance in one of

the minority series of law reports. Having said that, Cotton has been

recently quoted with approval and applied by Moses LJ in

McCarthy v Visitors to Inns of Court and Bar Standards Board

19

under section 8(1)(b) of the Solicitors (Amendment) Act 1960, as follows.

(b) the High Court may, if it thinks fit, remit the case to the

Disciplinary Tribunal to take further evidence for submission

to it and to make to it a supplementary report, and the Court

may adjourn the hearing of the matter pending the submission

to it of such further evidence and the making of such

supplementary report;

FINDINGS OF THE COURT: SECTION 8 JURISDICTION

detail at paragraphs 25 to 38 above—that there continues to be a distinction between the

High Court’s role under section 8 and its role in the context of a statutory appeal under

section 7(13) of the Solicitors (Amendment) Act 1960. There is nothing in the judgment

in Coleman which seeks to collapse the distinction between the two forms of procedure.

Rather, the import of the judgment in Coleman is that, even in the context of its more

limited function under section 8, the High Court must satisfy itself that the findings of

misconduct have a “sustainable basis”. This language is indicative of a form of judicial

review which falls short of a full appeal by way of rehearing.

as opposed to a statutory appeal, a respondent solicitor must demonstrate that the finding

does not have a sustainable basis. If and insofar as a respondent solicitor seeks to

question the merits of the decision of the Disciplinary Tribunal, it will be necessary to

satisfy the High Court that no tribunal, acting reasonably and applying the correct legal

principles, could have reached the finding on the basis of the materials before it. It is not

enough that the High Court, had it been determining the matter de novo, might have

20

reached a different decision. The actual findings of misconduct must be such that they

lie outside the range of reasonable or rational decisions which could have been reached

by the tribunal. The Disciplinary Tribunal will have had the benefit of hearing the oral

evidence of the witnesses and will have been in a position to assess their demeanour. It

will only be in exceptional cases that the High Court will set aside findings of primary

fact.

the basis of an alleged unfairness or on the basis of an error of law. This is the approach

adopted by the Solicitor in the present case. Counsel has disavowed any attempt to

challenge primary findings of fact. Rather, it is asserted that the Disciplinary Tribunal

erred in law in attaching too much weight to admissions made by the Solicitor, and failing

to reconcile these with what is said to be uncontroverted evidence to the opposite effect.

It is also asserted that the findings of misconduct in the second set of disciplinary

proceedings are vitiated by procedural unfairness, and, in particular, a failure to have

regard to all relevant documentation.

(Amendment) Act 1960 to set aside findings of misconduct if a respondent solicitor can

establish that the disciplinary proceedings had been unfair or that the tribunal misdirected

itself in law. This is subject to the caveat that the unfairness or error of law alleged must

have been material, i.e. such that it was capable of affecting the ultimate outcome of the

disciplinary proceedings. This does not mean that the respondent solicitor must prove

that the outcome would have been different but for the unfairness or error of law. Rather,

it means that a respondent solicitor cannot seek to set aside the findings on the basis of

procedural missteps or legal errors which are not likely to have affected the outcome.

This limitation on the section 8 jurisdiction does not cause any injustice to the respondent

21

solicitor: they have a full right of appeal against the findings pursuant to section 7(13)

and this provides a full remedy against any such procedural missteps or legal errors.

solicitor to introduce further evidence in the context of a “strike off” application. The

general rule is that if a respondent solicitor wishes to introduce evidence or to cross-

examine witnesses, then they should invoke their statutory right of appeal. (See, for

example, O’Sullivan). For the purposes of section 8 of the Solicitors (Amendment) Act

1960, the High Court’s review of the sustainability of findings of misconduct will

normally be carried out by reference solely to the materials which had been before the

Disciplinary Tribunal. This is one of the essential differences between a review and a

full appeal by rehearing.

further evidence in the context of its review, but only where that evidence goes to the

narrow issue of the sustainability of the findings of misconduct. One example of

circumstances where further evidence will be allowed is where relevant evidence, which

could not have been obtained by the respondent solicitor, exercising reasonable diligence,

prior to the hearing before the Disciplinary Tribunal, has emerged subsequently. By

contrast, it will rarely, if ever, be open to a respondent solicitor to adduce further evidence

from a witness who actually gave evidence before the Disciplinary Tribunal. All relevant

evidence should be adduced from the witness at the time, and a second bite at the cherry

will not normally be allowed. I will return to discuss the question of further evidence in

context. (See, in particular, paragraphs 145 to 153, and paragraphs 211 to 216, below).

certainly of interest, my conclusions above are premised on the detailed case law from

the Supreme Court and Court of Appeal. The statutory regime governing disciplinary

22

proceedings in the neighbouring jurisdiction is very different from that under the

Solicitors (Amendment) Act 1960. Given these very real differences, it is, I hope, not

unnecessarily jingoistic to say that it is preferable to rely on domestic case law.

23

PART III

CONVEYANCING TRANSACTION / FAIRVIEW CONSTRUCTION LTD

order of the Disciplinary Tribunal is dated 18 March 2010.

effect that the Solicitor had:

(a) Caused or allowed the name of Michael O’Donnell, solicitor, to be

written on a contract for sale dated 19 May 2004 without the authority

of Michael O’Donnell.

(b) Caused or allowed a fictitious contract dated 19 May 2004 to come

into existence and purportedly made between the Complainant’s

clients and Michael O’Donnell solicitor in trust for the purpose of

misleading ACC bank into advancing monies to Fairview

Construction Limited knowing that the sale of the land from Fairview

Construction Limited had not closed and that the dwelling units had

not been constructed.

(c) Destroyed a file, consisting of merely three contracts, relating to the

contested contract dated 19 May 2004 without the express or implied

instructions of both parties and in particular the Complainant’s

clients, Shaun Heffernan and Sean Rowlette.

(d) Acted for both the vendor/builder, Fairview Construction Limited,

and purchasers of thirteen newly constructed houses at Shramore,

Galway Road, Tuam, Co. Galway, involving himself in a possible

conflict of interest contrary to the provisions of Article 4 (a) of the

Solicitors (Professional Practice, Conduct and Discipline)

Regulations 1997 S.I. No. 85 of 1997.

above (the sub-paragraphs are lettered (b), (c), (d) and (g) in the formal order). The

formal order retains the original lettering as per the affidavit setting out the complaints,

and the “gaps” in the sequence of lettering reflects the fact that certain additional

complaints, which had been made against the Solicitor, were either withdrawn, or, in one

instance, dismissed).

24

in May 2004. The lands in sale had the benefit of planning permission for residential

development, and the purported sale related to thirteen units to be constructed on the

lands. The lands had recently been purchased by a company known as Fairview

Construction Ltd. The directors of this company were Shaun Heffernan and Sean

Rowlette (“the directors”). Fairview Construction Ltd had obtained a loan facility from

ACC Bank to allow it to complete its purchase of the lands. The Solicitor had been

providing legal assistance to the company in respect of its dealings with ACC Bank.

dated 26 April 2005 in the Solicitor’s affidavit of 12 June 2009, but this appears to be in

error and is inconsistent with the dates on the exhibited documents). The loan facility

was subject to a number of special conditions. Relevantly, special condition 11 provided

as follows.

“11. Prior to drawdown of any funds from Facility B (€27,000 for

Servicing i.e. 70% of total servicing cost and €340,000 to

build Block 1, comprising nine units i.e. 100% of build cost)

solicitor must confirm in writing that unconditional and

irrevocable contracts with deposits paid, are in place for

5 units totalling min. Net €665,000 for units in Block 1.”

ACC Bank on behalf of Fairview Construction Ltd confirming that five houses “have

been sold”.

had been entered into between Fairview Construction Ltd, as vendor, and a solicitor

acting on behalf of an undisclosed principal as purchaser. Three contracts for sale, in

accordance with the Law Society’s General Conditions of Sale, had purportedly been

entered into in respect of the lands on 19 May 2004. It appears that the original contracts

for sale have all been destroyed, but photocopies of two of the three contracts had been

25

retained by the directors of Fairview Developments Ltd., and had been exhibited before

the Disciplinary Tribunal.

identity of the purchaser is not disclosed. Instead, the contracts for sale had, purportedly,

been signed by another solicitor, Mr. Michael O’Donnell, as purchaser “in trust”.

Mr. Mark Devaney. However, Mr. Devaney’s involvement had not been disclosed to the

directors until much later. (Mr. Devaney had, in fact, been the person who had originally

sold the lands to Fairview Construction Ltd).

sale, namely Fairview Construction Ltd. The Solicitor had also been acting, for a time,

on behalf of the purported purchaser, Mr. Devaney. The Solicitor maintains that

thereafter he had arranged for Mr. O’Donnell to act on behalf of Mr. Devaney.

the Solicitor had initially explained his involvement in the signing of the contracts for

sale as follows.

“Mr. Coleman [the Solicitor] was questioned on the contract for the

sale of the property on behalf of Fairview Construction Limited. He

agreed that he had drawn up three contracts for sale relating to the

portion of the site itself, and two subsequent contracts relating to the

sale of the services and amenities. The solicitor was asked who were

the purchasers. Mr. Coleman replied that Behy Downs and Mr.

Devany together with other purchasers. Mr Coleman was asked in

connection with the contract which was signed by Michael

O’Donnell whether he witnessed the signature. He informed the

Committee that he had witnessed it. Mr Coleman then informed the

Committee that he had asked Mr O’Donnell if he would ask (sic) as

agent for Mr. Devany and the solicitor subsequently signed Mr

McDonald’s (sic) name with this gentleman’s consent which he

received over the phone. When Mr Coleman was asked why he had

asked Mr O’Donnell to sign the contract he said he did so because he

knew he could not act for both parties.”

26

sale. Nor did he authorise anybody to place or sign his signature on the contracts for

sale. Mr. O’Donnell gave evidence to this effect at the hearing before the Disciplinary

Tribunal. The transcript of the hearing before the Disciplinary Tribunal indicates that his

evidence was unequivocal, notwithstanding that he had been cross-examined on it at

length by the barrister then representing the Solicitor. (See transcript of hearing before

Disciplinary Tribunal on 10 February 2010, pages 59 to 84).

transaction without having had sight of the title.

“No, in fairness Mr. Coleman, he may have asked me, not in this

book, that if he was caught in a situation where he was acting for

developers would I act as agent or could he make a referral of clients

if there was a conflict of interest and, of course, I would have said yes

if there was no issues or any problems involved in. I didn’t know

anything at all got to do about this particular property or transaction

and I would never give permission to someone unless I had a Booklet

of Title or was doing my own investigation into what was going on.

In fact, I don’t think that I have ever given carte blanche authorisation

to anyone to do anything which would commit people to very serious

transactions.”

for sale had purportedly been signed by him, was so concerned about this that he

immediately wrote to the Solicitor by letter dated 6 April 2005 in the following terms.

“The above named has handed me copies of a purported contract with

my name appearing on it as purchaser in Trust and what purports to

be my signature appended to same. I have no knowledge whatsoever

of this transaction and it was quite a surprise to me when Mr Rowlett

attended at my office this morning in a very aggressive and abusive

manner.

He maintains that he is at a considerable financial loss arising from

these transactions. It appears from my meeting with Mr Rowlett that

he is going to take matters further on the issue regarding the contract

which was purportedly signed by me on Trust for a third party.

On reading the contract and comparison of the signatures I had no

involvement therein and did not sign on behalf of any third party or

27

on Trust for anybody. I explained to him I know nothing about what

was going on and that I did not sign the contracts.

It appears that all the contracts emanated from your office and bore

my name as purchaser in trust. This is most serious and it is a matter

of urgency. I will seek an explanation from you regarding the

contracts which were purported to be signed by me.”

signature on the contracts for sale. The Solicitor also accepts that he had no written

authority to do so.

under the loan agreement between Fairview Construction Ltd and ACC Bank that the

company’s solicitor must confirm in writing that “unconditional and irrevocable

contracts with deposits paid” were in place for five units.

Bank advising that the development had been sold. See paragraph 13 as follows.

“13. The loan offer required confirmation that pre sales were in

existence to enable drawdown of funds. I confirm that I sent

a letter to ACC Bank, Ballina, County Mayo advising that the

development had been sold which from Sean Heffernan and

Sean Rowlette point of view had been the position. Sean

Heffernan and Sean Roulette (sic) put your deponent herein

under pressure to create the contract of sale and to confirm to

ACC Bank that the sales were in place by means of

enforceable contract for sale.”

from the Solicitor dated 14 July 2004 which confirmed that five houses “have been sold.

There are enforceable contracts for Sale and Building Agreements in place”. (See

page 100 of the exhibit to Ms Helene Blayney’s affidavit of 27 February 2009).

this letter of 14 July 2004 had not been adduced in evidence at the hearing on 10 February

2010. The Solicitor also avers that there was no evidence that the letter existed or was

28

authored or signed by him or sent to ACC Bank. The Solicitor fails, however, to explain

how this averment is consistent with paragraph 13 of his affidavit of 12 June 2009

(above) where he expressly confirms that he had sent a letter to ACC Bank, Ballina,

County Mayo advising that the development had been sold.

lands as follows in his affidavit of 12 June 2009.

“14. I advised Sean Heffernan and Sean Roulette (sic) that it was

against Law Society Regulation that the one solicitor should

act for all parties in a development of houses such as this one.

I advised that another solicitor should be retained. At this

juncture, title was not in a manner which could be perfected

as the following remained outstanding, namely,

a) engineering certificates were outstanding,

b) Premier Guarantee Certificates

c) Bonds and Council levies

15. I say that I was advised by Sean Heffernan and Sean Roulette

(sic) that a purchaser was available and would purchase the

entire estate from the plans. Sean Heffernan and Sean

Rowlette were not made aware of the purchaser details but

was advised that the purchaser had come through Mark

Devaney.

16. In accordance to regulation, I advised that I could not act and

that a solicitor would have to be retained to act for the

purchaser. I was asked by Mark Devaney, to obtain a new

solicitor and one that would accept the title as it stood at that

time with a view to being perfected in the course of the

transaction.

17. I say that your deponent was put under pressure from Sean

Heffernan and Sean Rowlette to make such contracts.

18. In this regard, this writer asked a colleague, Mr Michael

O’Donnell of Rathkeal in the County of Limerick would he

be willing to act in the purchase of 13 units at Tuam in the

County of Galway. I advised Mr O’Donnell that title would

be perfected in due course but that it would take some time.

Mr O’Donnell gave his consent to act in the purchase and

authorised this writer to sign his name to the contract which I

duly did.

29

19. I say that Mr O’Donnell never obtained title from this office.

I say that Mr O’Donnell never met Sean Heffernan, Mr Sean

Rowlette or Mr Mark Devaney prior to the initial contract for

sale being entered into. I say that Mr Michael O’Donnell

never saw any contract or booklet of title.”

not be perfected because a number of matters remained outstanding. The Solicitor also

accepts that Mr. O’Donnell had neither met Mr. Devaney nor seen any contract or booklet

of title prior to his (Mr. O’Donnell) having allegedly authorised the Solicitor to sign the

contracts for sale. Against this factual background, it is impossible to understand how

Mr. Devaney could be said to have been bound by the purported contracts for sale of

19 May 2004. In particular, he could not be bound by the signature on the contracts for

sale. The Solicitor had no written authority to put Mr. O’Donnell’s signature on the

contracts, and, in any event, Mr. O’Donnell could not be said to be the lawfully

authorised agent of Mr. Devaney in circumstances where they had never even spoken to

each other, still less entered into a retainer.

ADMISSIONS OF FACT

Disciplinary Tribunal are legally unsustainable, it is necessary first to examine the

approach actually taken by the Solicitor at the hearing before the Disciplinary Tribunal

in February 2010. In particular, it is necessary to examine the admissions of fact made

by the Solicitor, through his then barrister, at the hearing.

of another witness (Helene Blayney from the Law Society), the barrister acting for the

Solicitor indicated that his client wanted to “deal with certain of the issues” but had a

difficulty with the language used in some of the complaints. The barrister further

30

explained that the Solicitor accepted where “responsibility rests” in this matter. It was

submitted that the language in the complaints was “poor”, and that the Solicitor would

be interested in taking a certain course. At a later point, the barrister states that the

Solicitor wanted to deal with the matter in “a particular way”, and did not want to be

“wasting” the Disciplinary Tribunal’s time.

between an admission of fact, and a finding of misconduct, which he described as the

responsibility of the Disciplinary Tribunal. The chairman also acknowledged that it is

the right or privilege of a respondent solicitor to dispute facts, but that certain things

could be agreed. (Transcript at page 106). At a later point, the chairman reiterated that

the Solicitor was not under any pressure to make admissions, and should not feel that the

Disciplinary Tribunal wanted to save time. The barrister responded by saying as follows.

Barrister:

No, we are not succumbing to pressure. What we are trying to

do is to limit it as much as possible what needs to be traversed.

that same constituted misconduct. See transcript at page 108, as follows.

Chairman:

You take the position that you accept the facts stated but you

deny that it is misconduct.

Barrister:

Absolutely.

Chairman:

That then removes the necessity for evidence and it is a question

of presentation of the Law Society’s view on it and your

perspective on it and our decision on it.

Barrister:

Yes.

each of the complaints which now represent the four findings of misconduct. In some

instances, the wording had first been modified from the complaint as originally

formulated. For example, the wording of the complaint that the Solicitor had “destroyed

31

a file relating to the contested contract” had been amended to add the qualifying words

“consisting of merely three contracts”. The amendment was to reflect the submission

that the only documents within the file were the contracts which had been destroyed. The

Solicitor himself is recorded on the transcript as having intervened to say that he would

accept that he “destroyed 4ft of paperwork”. (Transcript, page 113).

undertaking. (This is a different complaint than the credit union undertaking discussed

under the next heading). It was necessary, therefore, to hear evidence on this complaint,

and the Disciplinary Tribunal then made a ruling dismissing that complaint.

hear submissions on whether those admitted facts constituted professional misconduct.

(Transcript, pages 175 to 186).

Act 1960 as including conduct tending to bring the solicitors’ profession into disrepute.

(It also includes the contravention of a provision of regulations).

misericordiam plea. The plea began by conceding that the Solicitor had a “difficulty” in

persuading the Disciplinary Tribunal that the “very serious and significant” matters to be

adjudicated upon did not amount to misconduct. Attention was drawn to the personal

circumstances of the Solicitor, and that his prospects were bleak. It was submitted that

during the Celtic Tiger [years] the

“whole standard, the whole benchmark, the whole bar was lowered

in peoples’ desire and ambition to build properties and make

monies”.

operation in the disciplinary process.

32

“If Daniel Coleman [the Solicitor] had behaved at any point

throughout any of these proceedings whether it was before the

Committee or in his dealings with Ms. Blayney or in his dealings with

the High Court or anybody else that he had come in contact with if

he was to have behaved in a belligerent, difficult, arrogant, or

obstructive and unhelpful manner and fashion that, in my submission,

would amount to misconduct that would tend to bring the profession

into disrepute.

On the other hand what he has demonstrated out of the adversity that

he finds himself in is his true sense of integrity and honour and I think

that is to be applauded. […]”.

the other solicitor’s name on the contracts was acknowledged to be “the most serious of

offences” and “entirely improper”; and the destruction of the file or the destruction of the

contracts was referred to as “a matter to be properly frowned upon”.

deliver their ruling. The Solicitor was found guilty of misconduct.

addressing the Disciplinary Tribunal. The following extract from the transcript indicates

the nature of the approach taken on behalf of the Solicitor by his barrister. (See page 192

of the transcript).

“I am asking that some light, some comfort be given to him that falls

short of him being struck off. It is not for me I think to suggest and

if I did I would be very careful about how I did as to what you might

consider by way of alternative but it is open to you, Chairman,

notwithstanding what [counsel for the Law Society] has said.

To be honest there is no real basis on which I could refute the vast

majority of what he has said except ask you to say fine. Ordinarily,

yes, but there is a basis on which he can be distinguished and

differentiated.

If you accept that that is the case and you accept that, perhaps, in the

fullness of time, not immediately, but in time he is someone who

could be embarrassed [recte, embraced] again by the [Law Society]

and in the interim that he be restricted or hugely limited in what he

could or could not do so that, at least, that opportunity is open to him.

I would ask that that be considered because short of that I will go

33

back again to what I said at the start, what does he do. It is as simple

and straightforward as that. Thank you, Chairman.”

ultimately, made a recommendation that the Solicitor’s name should be struck off the

Roll of Solicitors.

Disciplinary Tribunal was, in effect, to make a series of admissions of fact; not to

seriously contest that the conduct admitted to constituted professional misconduct; and

to rely on his co-operation in the disciplinary process, and his personal and family

circumstances, in support of a plea for leniency.

Volte face by Solicitor

Solicitor now wishes to challenge each and every one of the four findings of misconduct.

The principal grounds on which he seeks to do so can be summarised as follows. First,

insofar as the contracts for sale are concerned, whereas it is still accepted that the other

solicitor’s signature was put on the contracts for sale without authority, it is now said that

this had been done in the honest—but mistaken—belief that the Solicitor had oral

authority from the other solicitor (Mr. O’Donnell) to sign his name. Secondly, it is denied

that the contracts for sale were “fictitious”. It is said that the contracts for sale were

ultimately completed, and that ACC Bank could not therefore have been misled.

Objection is made that the letter of 14 July 2004 to ACC Bank had never been adduced

in evidence before the Disciplinary Tribunal. Thirdly, it is said that the contracts for sale

had been destroyed by a solicitor employed by the Solicitor, on the clients’ instructions,

and replaced with a new contract for sale. Finally, it is said that the Solicitors

(Professional Practice, Conduct and Discipline) Regulations 1997 do not apply to sales

of property “off the plans”.

34

FINDINGS OF THE COURT: FAIRVIEW CONSTRUCTION LTD

Solicitor bound by admissions of fact

misconduct must be to consider the status of admissions which have been made

voluntarily and with the benefit of legal advice. More specifically, the issue which arises

in the context of the “strike off” application now before the court is whether the

sustainability of the findings of the Disciplinary Tribunal can be impugned by contending

that the tribunal was not entitled to rely on the admissions made.

determination in this judgment is because admissions might have a different status in the

context of a statutory appeal under section 7(13) of the Solicitors (Amendment) Act

1960. The judgment of Clarke J. (as he then was) in Fitzgibbon v. Law Society of Ireland

35

to a statutory appeal—and is exercising its narrower jurisdiction under section 8 of the

Solicitors (Amendment) Act 1960.

of fact.

Supreme Court in People (Director of Public Prosecutions) v. Redmond

liability in the High Court, should be entitled to amend its grounds of appeal to contest

liability for the first time before the Supreme Court. The Supreme Court held that, absent

fraud, or some fundamental issue of justice arising from the conduct of the proceedings,

it was difficult to contemplate circumstances in which a party would be permitted, in an

appeal or otherwise, to impugn a determination by the High Court of an issue, such as

liability, which had been expressly conceded by the party concerned.

36

consideration in this case law. The analogy is, therefore, far from perfect. Nevertheless,

the case law is of some assistance in that it highlights the autonomy of a party to

determine whether or not to make admissions, and the limited discretion of a decision-

maker to refuse to accept such an admission. The judgment in Keating also emphasises

the public interest in the finality of proceedings, which would be undermined if parties

were entitled to resile from earlier concessions.

upon admissions which have been made voluntarily and with the benefit of legal advice.

Save in the context of a statutory appeal by way of a rehearing, a party will only be

entitled to resile from such an admission in exceptional circumstances.

be determined by reference to the criminal standard of proof, i.e. beyond all reasonable

doubt. It is said to follow as a corollary that not only must the Law Society prove the

acts of the offence and that those acts constitute misconduct, but the Law Society must

also negative any defence of the respondent solicitor and to negative any reasonable

hypothesis consistent with the innocence of the solicitor. The judgment of the High Court

“For these reasons, I was satisfied that the onus lay upon the [Medical

Council] to prove beyond reasonable doubt every relevant averment

of fact which was not admitted by Mr. O’Laoire and to establish

beyond reasonable doubt that such facts, as so proved or admitted,

constituted professional misconduct.”

37

prove, to a criminal standard, facts which are admitted by a respondent solicitor.

obliged by law to disregard an admission of fact made by a party which has the effect of

saving time, and instead to invest itself in deciding whether that admission was well

made. Counsel draws an analogy with the criminal justice system, and, in particular, the

provision made under section 22 of the Criminal Justice Act 1984 for parties to make

formal admissions of facts. The prosecution, having been offered admissions by the

defence, is not then required to go through all the admitted facts in any event in order to

see whether the admissions can be undermined. It is said that this would be a completely

artificial and unrealistic view of the obligation upon the prosecution in a criminal trial.

Similar principles are said to apply, by analogy, to admissions of fact tendered in

disciplinary proceedings.

taken by the Solicitor to the hearing before the Disciplinary Tribunal was to rely on his

co-operation in support of a plea ad misericordiam. A central part of this approach was

to make the admissions of fact, and thereafter not to contest seriously that the admitted

facts disclosed professional misconduct. The Disciplinary Tribunal was entitled to take

these admissions at face value, and did not have to search out evidence which might

undermine those admissions.

Alleged failure to plead dishonesty

admissions by advancing the following two arguments. First, it is said that the

Disciplinary Tribunal did not properly observe the distinction between (i) an admission

of fact, and (ii) an admission of misconduct. Secondly, it is said that the complaints as

38

formulated by the Law Society did not allege “dishonesty”. A complaint of dishonesty

must, it is said, be pleaded with pitiless particularity. No one should be found to have

been dishonest on a side wind; rather, dishonesty is an issue that must be articulated,

addressed and adjudged head-on. A finding of dishonesty in the absence of a pleading

deprives that finding of a sustainable basis in law. The judgments of the High Court of

any test for dishonesty; did not apply any such test; and made no explicit finding of

dishonesty.

findings of misconduct. It is evident from the transcript of the hearing before the

Disciplinary Tribunal on 10 February 2010 that the Solicitor made a strategic decision,

with the benefit of legal advice, to make admissions of fact with a view to relying

thereafter on his co-operation as a mitigating factor in a plea for leniency.

fact (as opposed to admissions of misconduct). However, this distinction is wholly

artificial in the context of the wording of the complaints, and the submissions made by

his own barrister. By admitting to the conduct in the terms described in the complaints,

the Solicitor was, in effect, admitting misconduct. The conduct as set out in the

complaints could not be characterised as anything other than professional misconduct.

39

of another solicitor to be written on a contract for sale “without authority”; and that the

contract was a “fictitious contract” for the purpose of “misleading” a financial institution

into advancing monies to a development company. This was not contested by the

Solicitor at the time. His own barrister acknowledged at the hearing in February 2010

that the signing of the other solicitor’s name on the contracts was “the most serious of

offences” and “entirely improper”. This acknowledgment was well made.

transactions with integrity and probity. It would undermine faith and trust in the

solicitors profession were individual solicitors to engage in “fictitious” transactions for

the purpose of “misleading” financial institutions. Where conduct of this type is engaged

upon by a solicitor, it is self-evidently conduct which is likely to bring the profession into

disrepute.

contracts for sale without express or implied instructions. It had been clearly explained

by counsel then acting for the Law Society (the late Paul Anthony McDermott, SC) that

there is a difference between destroying a contract and destroying a file, and that the

allegation was that the file had been destroyed. (Transcript, page 49/50). The distinction

is reflected in the modified wording of the complaint as agreed to by the Solicitor. Again,

the destruction of a client’s file without instructions is self-evidently conduct which is

likely to bring the profession into disrepute. The Solicitor’s own barrister acknowledged

at the time that the destruction of the file or the destruction of the contracts was “a matter

to be properly frowned upon”.

by having acted for both vendor/builder and purchasers, as involving himself in a possible

40

conflict of interest contrary to the Solicitors (Professional Practice, Conduct and

Discipline) Regulations 1997. This admission is consistent with the approach which the

Solicitor had adopted in his affidavit of 12 June 2009. See paragraph 60(g) of the

affidavit as follows.

“(g) Acted for both the Vendor/Builder, Fairview Construction

Limited, and purchasers of thirteen newly constructed houses

at Shramore, Galway Road, Tuam, County Galway involving

himself in a possible conflict of interest contrary to the

provisions of Article 4 (a) of the Solicitors (Professional

Practice, Conduct and Discipline) Regulations 1997 S.I.

No 85 of 1997.

I admit that I acted contrary to the aforementioned regulation and

undertake to the Honourable Law Society not to breach the said

regulation in the future.”

(Amendment) Act 1960 includes the contravention of a provision of regulations.

on notice that it was being alleged that he had engaged in “dishonesty” is untenable. The

complaint which was put to the Solicitor, via the affidavit of Helene Blayney grounding

the section 7 inquiry, alleged inter alia that he had produced a “fictitious contract”, and

that this had been done for the purpose of “misleading” a financial institution. It is

obvious that such conduct on the part of a solicitor represents dishonest conduct. Indeed,

counsel at the hearing before me ultimately conceded that the use of the language

“fictitious contract” and “misleading” did, indeed, connote dishonesty.

thereof) that he was made aware of an allegation of dishonesty in relation to Mr.

O’Donnell’s signature by Helene Blayney’s affidavit (at paragraph 5 thereof).

lack of credibility to him by way of cross-examination, citing Browne v. Dunn (1893)

41

6 R 67. In that case, the House of Lords held that, if in the course of a case, it is intended

to suggest that a witness is not speaking the truth upon a particular point, his attention

must be directed to the fact by cross-examination showing that that imputation is intended

to be made, so that he may have an opportunity of making any explanation which is open

to him. This is so unless it is otherwise perfectly clear that the witness has had full notice

beforehand that there is an intention to impeach the credibility of his story, or the story

is of an incredible and romancing character.

as in this case, a party to proceedings, who has the benefit of legal advice, makes a series

of admissions. These admissions were, with one exception, made through counsel. Other

than one intervention from the floor, the Solicitor himself did not give evidence and thus

there had been no cross-examination. It is difficult to understand how the Law Society

can be criticised for failing to put an allegation to the Solicitor on cross-examination

when the necessity for oral evidence had been obviated precisely because the Solicitor

had made admissions in respect of that allegation.

Submission that there had been procedural unfairness

made voluntarily, nor has the Solicitor pointed to any exceptional circumstances, such as

42

mistake, which explains why he now seeks to withdraw those admissions. Instead, the

most that the Solicitor does is to point to an alleged unfairness on the part of the

Disciplinary Tribunal at an earlier stage of the hearing.

instances of alleged unfairness cited is now conceded to have been factually incorrect.

More specifically, at numerous points in the written legal submissions filed on behalf of

the Solicitor, it had been incorrectly stated that the Disciplinary Tribunal had refused to

adjourn the hearing so as to allow a particular witness to attend. (See for example §15,

§16, §20, §38, §43, §69 and §70 of the written legal submissions). The written legal

submissions reflect an inaccurate averment in the Solicitor’s affidavit to the effect that

his then barrister had requested an adjournment such that necessary witnesses that would

establish his innocence would be called; and that the adjournment application was

summarily refused by the chairperson of the Disciplinary Tribunal. (See Mr. Coleman’s

affidavit of 23 May 2019, paragraphs 44 to 48).

transcript of the hearing before the Disciplinary Tribunal to an adjournment having been

sought or refused. (See High Court transcript, Day 2, 5 March 2020, at page 54; pages

85/86; and pages 199/200).

previously submitted a number of affidavits to the Law Society in response to the

complaints made against him. In particular, three affidavits were submitted under cover

of letter dated 27 February 2008. One of these affidavits had been sworn by a solicitor

who had been employed in his office, Hilary O’Connor (“the solicitor employee”). In

this affidavit, the solicitor employee had stated that she had destroyed the contracts for

sale in 2005, and that this had been done on the insistence of the directors of Fairview

43

Construction Ltd. Both directors had denied this in their joint affidavit of 14 January

2009.

called the solicitor employee as a witness at the hearing. The position adopted on behalf

of the Solicitor was to the effect that there was an obligation on the Law Society to call

oral evidence from the solicitor employee. The chairman of the Disciplinary Tribunal

indicated that it was open to the Solicitor to call the solicitor employee as a witness. The

barrister acting on behalf of the Solicitor indicated that it was not a matter for his client

to call witnesses. The upshot of this was that the solicitor employee was not ultimately

called to give oral evidence. Her affidavit remained before the Disciplinary Tribunal,

and could have been relied upon by the Solicitor had he wished to do so.

a refusal on the part of the Disciplinary Tribunal to grant an adjournment to allow the

solicitor employee to be called as a witness. It is evident from the transcript that this is

not what happened.

“causal link” between the making of the admissions, and the approach of the Disciplinary

Tribunal in not insisting that the Law Society call evidence from the deponents of the

affidavits filed on behalf of the Solicitor. (In addition to the solicitor employee’s

affidavit, two affidavits sworn by Mr. Devaney had also been filed). It had been

submitted that the (improper) effect of this ruling was to require the Solicitor to prove a

hypothesis which was consistent with his innocence. In support of this argument, counsel

had placed reliance on the judgment in M.M. v. Secretary of State of the Home

44

procedural irregularity or impropriety which, in its view, made no difference to the

outcome of the proceedings, then the appropriate conclusion is that there was no

unfairness to the party concerned. Applying this logic, if the alleged unfairness on the

part of the Disciplinary Tribunal had been overtaken by events, i.e. the making of

admissions by the Solicitor, then the alleged procedural irregularity or impropriety did

not affect the outcome. It is only if the earlier ruling had been causative of the subsequent

admissions that the analogy with the principles in M.M. v. Secretary of State of the Home

Department relied upon would hold good.

of 12 June 2020. Having again cited the passage from M.M. v. Secretary of State of the

Home Department, it is then submitted at §12 that there is no requirement to prove

causality between the unfairness and the admissions made by the Solicitor.

the (original) submission that there was a causal link between the ruling on the calling of

witnesses, and the subsequent admissions. In particular, the Solicitor has not stated that

his decision to make admissions had been informed by the earlier exchange. Moreover,

the logic of the submission is that, as a consequence of the Law Society not calling the

witness and of the Solicitor declining to call the witness himself, the Solicitor decided to

make a series of factual admissions which were untrue. In this regard, it will be recalled

that the Solicitor himself actually intervened at the hearing to make an admission himself,

i.e. as opposed to leaving it to his barrister to do so. The barrister also expressly

confirmed to the Disciplinary Tribunal that his side did not feel under pressure to make

admissions.

knowing this to be an untruth, would have been an extraordinary thing to have done. If

45

this argument were to be pursued before the High Court, then the Solicitor should have

set all of this out on affidavit. This has not been done. There is nothing in his affidavit

which even hints at his will having been overborne, or that he made a false admission.

The Solicitor has not averred that the admissions were other than voluntary.

express admission that he had destroyed the file. In making this admission, he implicitly

accepted the distinction, which had been drawn from the very outset of the hearing by

counsel then acting for the Law Society, between the destruction of a client’s file and the

destruction of a contract. Indeed, the wording of the complaint was specifically amended

so as to reflect this distinction between the destruction of a client’s file and the destruction

of a contract for sale. (See transcript at pages 112 to 114).

Complaints and Client Relations Committee had served a statutory notice under

section 10 of the Solicitors (Amendment) Act 1994 seeking documents. As appears from

the note of the meeting of the Complaints and Client Relations Committee on 17 October

2007, the Committee had specifically requested that any attendance memorandums

which supported the assertion that Mr. O’Donnell had consented to the Solicitor signing

his name on the contracts be provided. By letter dated 11 December 2007, it was

confirmed to the Law Society that the file had been destroyed.

The Solicitor chose not to call evidence from the solicitor employee. Further, during the

course of the hearing on 10 February 2010, the Solicitor expressly accepted that he bore

responsibility for the destruction of the client file. More recently, as part of his

submissions to the High Court on the appropriate sanction, the Solicitor now says that he

46

accepts responsibility for the destruction of the file as principal of the firm. (See §20(xiii)

of the supplemental written submissions).

evidence” exists which contradicts the solicitor employee’s affidavit is incorrect: the

directors of Fairview Construction Ltd have denied in their joint affidavit of 14 January

2009 that they had instructed her to destroy the contracts for sale. Ms O’Connor’s

evidence did not, therefore, represent “uncontested evidence” as suggested in the written

legal submissions.

Mr. Devaney as a witness

hearing before the Disciplinary Tribunal in order to call Mr. Devaney as a witness. Mr.

Devaney had sworn two affidavits on behalf of the Solicitor as part of the disciplinary

proceedings, on 15 October 2007, and 25 February 2008, respectively. As explained

earlier, Mr. Devaney is purported to be the undisclosed principal for whom Mr.

O’Donnell had allegedly been acting. The Solicitor has admitted to having acted, for a

period of time, on behalf of Mr. Devaney, and has admitted that this had represented a

conflict of interest in circumstances where his existing client, Fairview Construction Ltd,

was to be the vendor of the lands.

hearing of the Disciplinary Tribunal, it is not at all clear what exculpatory evidence it is

now being suggested that Mr. Devaney would have been in a position to give. The

Solicitor made an express admission that the purported contracts for sale had been

“fictitious” and for the purpose of “misleading” a financial institution into advancing

monies to a development company, i.e. Fairview Construction Ltd. The condition

precedent to the drawdown of part of the funds from ACC Bank had been that the

47

company’s solicitor must confirm in writing that “unconditional and irrevocable”

contracts with deposits paid were in place for five of the units. The Solicitor, in his

affidavit of 12 June 2009, expressly confirms that he had sent a letter to ACC Bank,

Ballina, County Mayo advising that the development had been sold. In the same

affidavit, the Solicitor explains that, as of May 2004, the title to the lands in sale could

not be perfected because a number of matters remained outstanding. The Solicitor has

also explained that Mr. O’Donnell had neither met Mr. Devaney nor seen any contract or

booklet of title prior to his (Mr. O’Donnell) having allegedly authorised the Solicitor to

sign the contracts for sale. Mr. O’Donnell did not authorise anybody to place or sign his

signature on the contracts for sale. The Solicitor has also averred that he had been “under

pressure” from the directors of Fairview Construction Ltd to make such contracts.

be said to have been bound by the purported contracts for sale of 19 May 2004. In

particular, he could not be bound by the signature on the contracts. The Solicitor had no

authority to put Mr. O’Donnell’s signature on the contracts, and, in any event, Mr.

O’Donnell could not be said to be the lawful agent of Mr. Devaney in circumstances

where they had never even spoken to each other, still less entered into a retainer. The

fact—if fact it be—that Fairview Construction Ltd subsequently entered into a different

contract for the sale of the lands a year later cannot affect the legal position as of May

2004. The letter to ACC Bank had been sent on 14 July 2004, that is, at the very earliest,

eleven months prior to the new contract for sale. (The new contract for sale is said to

have been entered into in October 2005, but possibly backdated to June 2005). As of

14 July 2004, therefore, there was no “unconditional and irrevocable” contract for the

sale of the lands.

48

Hearing on 26 November 2009

be adjourned in circumstances where the Solicitor did not attend personally. The

application for the adjournment had been moved on behalf of the Solicitor by another

solicitor, Mr. Sean Sexton. Mr. Sexton had been on record but had to withdraw during

the course of the hearing in circumstances where the Solicitor had sent a fax to the Law

Society stating that he did not now have instructions. (For the avoidance of any doubt,

it should be noted that the Disciplinary Tribunal accepted that Mr. Sexton had acted

entirely properly in appearing before it). Mr. Sexton was then permitted to come off

record.

Tribunal that afternoon and make an application for an adjournment on behalf of the

Solicitor. Rather than delay further and await this application, the Disciplinary Tribunal

instead decided that, in circumstances where as a result of the delay in its starting, the

hearing would not finish within the day as scheduled, the interests of justice would be

best served by adjourning the hearing there and then. The chairman indicated that the

events of that day, including the confusion about representation, might have to be dealt

with at the resumed hearing.

comments would cause a reasonable bystander some concern that the Disciplinary

Tribunal would fetter its discretion at the resumed hearing.

nothing in the transcript which supports such a concern. The Disciplinary Tribunal had

adjourned the hearing in ease of the Solicitor. The reference to the events of the day

being dealt with again would be understood by the reasonable bystander as referring to

the issue of costs. It would clearly be relevant in any application for costs to have regard

49

to the chaotic circumstances in which the hearing on 26 November 2009 had had to be

adjourned. Indeed, the barrister then acting for the Law Society took the sensible

precaution of asking that the details of the witnesses who had travelled on behalf of the

Law Society be formally recorded in anticipation of a subsequent costs application. (See

pages 43/44 of the transcript of the hearing on 26 November 2009). In the event, an order

was made on 10 February 2010 directing that the Solicitor pay both the costs of the

adjourned hearing and the substantive hearing on 10 February 2010.

adjourned with a “jaundiced view”. Again, this is not borne out by the transcript. As

appears at page 43, the chairman, in response to an application by the Law Society to fix

the resumed hearing date on a peremptory basis, had expressed a “jaundiced view” about

fixing hearings on a peremptory basis.

“I always have a jaundiced view about preemptory (sic), because

preemptory (sic) is final until somebody gets hit by a train or loses a

close relative or get struck by illness, and sometimes it puts a hex on

things, I think. You can take it, however, that this Tribunal sits the

next time to hear this case.”

had taken a “jaundiced view” of the merits of the case. Rather, the chairman was simply

indicating that there are practical difficulties in fixing a hearing date on an absolutist

basis, which rules out the possibility of a further adjournment in any circumstances.

Manuscript notes

notes apparently taken by a member of the Disciplinary Tribunal at the hearing on

10 February 2010. These manuscript notes have been exhibited as part of Mr. Coleman’s

affidavit of 10 December 2019. The relevant extract appears at internal page 107.

50

made on behalf of the Solicitor on the question of whether the facts as admitted

constituted misconduct. Counsel for the Solicitor had just invited the Disciplinary

Tribunal to acknowledge that the Solicitor had acted with integrity. The words “What

about his false Affidavits?” then appear in the notes, seemingly by way of comment on

the submission.

Solicitor had sworn false affidavits should have been put to him by way of cross-

examination.

Tribunal made no finding against the Solicitor to the effect that he had sworn any false

affidavit. It simply does not feature as part of the findings of misconduct. As correctly

submitted by counsel on behalf of the Law Society, in the absence of such a finding, no

evidential weight can be attached to this part of the manuscript notes. They could, as

counsel suggests, simply be musings or jottings. For this court to rely on these notes to

make a finding of unfairness would be to engage in unwarranted speculation.

RELIANCE ON ADDITIONAL AFFIDAVITS

under section 8 of the Solicitors (Amendment) Act 1960, for a respondent solicitor to

introduce additional evidence which goes to the issue of whether findings of misconduct

are sustainable. I have decided, having regard to the very particular circumstances of this

case, to consider the content of these affidavits de bene esse. The fact that this case has

already involved an appeal to the Supreme Court has had the practical consequence that

these disciplinary proceedings have been delayed and remain unresolved some ten years

51

after the findings of the Disciplinary Tribunal were first made. Rather than run the risk

of the additional delay which would be caused were there to be a further appeal and

remittal to the High Court on the procedural issue of whether the affidavit evidence is

admissible, it seems more sensible to admit the affidavit evidence de bene esse and to

consider the implications, if any, of same for the outcome of the case.

Affidavit of Mr. Michael O’Donnell

in support of an argument that the Solicitor may have had an honest but mistaken belief

that he had Mr. O’Donnell’s spoken authority to sign the contracts.

Solicitor’s actual belief, and states that only the Solicitor can do that. The most that Mr.

O’Donnell says is that he cannot dispute that the Solicitor may have formed an honest,

but mistaken, genuine belief that he (Mr. O’Donnell) had given him consent. The matter

is put as follows at paragraph 9 of Mr. O’Donnell’s affidavit.

“I cannot and did not dispute that we had a telephone conversation

about a transaction in Tuam. I cannot dispute that Mr. Coleman may

have formed an honest but mistaken genuine belief that I had given

him consent. I say this having regard to the fact, which I cannot

dispute, that we discussed the transaction the subject of the complaint

and that I agreed to act on behalf of the purchaser together with the

general tenor of the discussion about the contract.”

finding of misconduct to the effect that the Solicitor had caused the name of another

solicitor to be written on a contract for sale “without authority”; and that the contract was

a “fictitious contract” for the purpose of “misleading” a financial institution into

advancing monies to a development company. In particular, Mr. O’Donnell has not

disavowed his sworn evidence to the Disciplinary Tribunal which, it will be recalled, had

been that he did not authorise any one to place his signature on the contracts for sale.

52

Court’s jurisdiction to review the sustainability of findings of misconduct, a respondent

solicitor could be entitled to rely on additional affidavit evidence from a person who had

actually appeared as a witness before the Disciplinary Tribunal. The Solicitor had been

legally represented at the hearing in February 2010, and his barrister had cross-examined

Mr. O’Donnell at length. The Solicitor, accordingly, had every opportunity to elicit such

evidence as he wished to rely upon from Mr. O’Donnell.

excusable because he had an honestly held belief that he had authority to sign Mr.

O’Donnell’s signature on the purported contracts for sale. Rather, the Solicitor made an

express admission that the contracts had been “fictitious”, and his own barrister

acknowledged at the hearing in February 2010 that the signing of the other solicitor’s

name on the contracts was “the most serious of offences” and “entirely improper”.

the Solicitor at the hearing before this court in March 2020 was unable to identify any

case law which suggested that one solicitor would be entitled to sign the name of another

solicitor on a contract for sale without written authority and without giving any indication

that the signature was not that of the second solicitor. Given the requirement that a

contract for sale be evidenced in writing and signed by the person or their authorised

agent, it must be doubtful whether this can be done.

Affidavit of Mr. Patrick Kelly (formerly of ACC Bank)

2018 in support of an argument that ACC Bank had not been misled by the Solicitor

arising out of his dealings with Fairview Construction Ltd.

53

he has no recollection of a letter confirming presales from Coleman and Company to

ACC Bank, and that he cannot, for the purpose of his affidavit, confirm or deny that the

letter was so issued or received by ACC Bank. In the circumstances, Mr. Kelly’s

evidence is of no assistance to the Solicitor. This is especially so where the Solicitor has

averred in his affidavit of 12 June 2009 that he sent a letter to ACC Bank advising that

the development had been sold.

SUMMARY

the conveyancing transaction are legally sustainable in the sense that that phrase is used

54

UNDERTAKING TO CREDIT UNION

made by a credit union to the effect that the Solicitor had failed to comply with an

undertaking which he had given to it. More specifically, Tuam Credit Union had

complained that the Solicitor had allowed certain lands to be sold in breach of an

undertaking to hold the title deeds in trust to the order of the credit union.

and the Disciplinary Tribunal, respectively, have been set out in detail in affidavits sworn

on behalf of the Law Society by Mr. David Irwin and Mr. John Eliot on 7 July 2010 and

2 July 2019, respectively. Mr. Irwin has exhibited an earlier affidavit of Ms Linda

Kirwan which had been before the Disciplinary Tribunal at its hearing on 25 February

2010.

findings of professional misconduct made by the Disciplinary Tribunal were as follows.

(a) Failed in a timely fashion or at all to comply with an undertaking

given by him in a letter dated 16th February, 2004 to the Complainant

whereby he undertook to hold the title deeds in respect of Folio

63100F Co. Galway in trust to the order of Tuam Credit Union

Limited.

(b) Failed to adequately respond to the Complainant’s correspondence

and in particular the Complainant’s letters dated 31st January 2008

and 1st September 2008.

(c) Failed to reply adequately to the Society’s correspondence in

particular letters dated 30th January 2009, 3rd March 2009 and 6th

April, 2009.

compensation. Notwithstanding this, the Law Society in its application to the High Court

in July 2010 expressly sought an order requiring the Solicitor to pay the sum of €320,000

in restitution to the credit union. The explanation for seeking this relief is stated as

55

follows in the affidavit of Mr. David Irwin of 7 July 2010 grounding the application to

the High Court.

“9. I beg to refer to the evidence given by the Complainant, Mr. Mick

Culkeen, Chief Executive Officer, of St. Jarlath’s Credit Union

Limited, Hermitage, Dublin Road, Tuam, Co. Galway. At the

hearing of this matter, the Complainant gave evidence as to the effect

of the Respondent Solicitor’s misconduct on the Credit Union. I

specifically refer to page 22 of the transcript in which the

Complainant stated that the Credit Union had lost approximately

€320,000.00 as a result of the Respondent Solicitor’s conduct. The

Society respectfully submits that the Tribunal should have made

allowance for this and made a recommendation in its report for

restitution in the sum of €320,000.00 against the Respondent

Solicitor and in favour of St. Jarlath’s Credit Union Limited. I

respectfully request that this relief be granted by the Court as set out

in the accompanying Notice of Motion.”

Solicitor to the credit union. The letter bears the reference “Patrick Kavanagh and

Michael Kavanagh Folio 63100F County Galway”, and it reads as follows.

“We act for the above named and further to our telephone

conversation we hereby undertake to hold the title deeds in respect of

folio 63100F, County of Galway in trust to the order of Tuam Credit

Union Limited. Kindly note that registration is being completed in

the Land Registry.”

undertaken to hold the title deeds, i.e. the land certificate, of certain lands “to the order

of” the credit union. The undertaking is given on behalf of two named individuals,

Patrick Kavanagh and Michael Kavanagh. The undertaking is not referable to any

particular loan or borrowings on the part of either of those two individuals.

the undertaking. Although not entirely clear from the papers before the Disciplinary

Tribunal, it appears to have been accepted by the Solicitor in correspondence that the

contract for the sale of the lands had been completed on 30 September 2005. The change

in registered ownership of the lands had subsequently been recorded on the folio in

56

February or March 2006. (See Mr. Flanagan’s evidence to the Disciplinary Tribunal on

25 February 2010, at page 27 of the transcript).

complaint was made by Mr. Michael Culkeen. Thereafter, during the period February

2009 to February 2010, the Solicitor offered various explanations as to what had occurred

in respect of the undertaking.

confined to the net proceeds of the sale of the relevant lands, but that there had been no

net proceeds.

“In any event, from this writers recollection, and from clarification

from Mr. Patrick Kavanagh it appears that there were no net proceeds

from this transaction.

The reason being, the Kavanagh’s loan with their principal lending

institution had been called in and therefore to obtain a discharge from

the primary charge holder, all monies from the sale had were remit to

the bank.

Therefore whilst this writer gave an undertaking over the net

proceeds, we confirm there were none.”

Complaints and Client Relations Committee that he thought that he had transferred the

undertaking to another firm of solicitors, namely Chambers & Flanagan Solicitors. This

proved to be incorrect, and the principal of that firm, Mr. Brendan Flanagan, gave

evidence confirming this to the Disciplinary Tribunal on 25 February 2010.

confirmed that he had “now obtained the relevant information to answer the complaint

of Saint Jarlath’s Credit Union”. The second letter stated that he was now in “a position

to fully respond to the allegation” that he was in breach of the undertaking.

57

the payment of a policy of life insurance. More specifically, it seems that Mr. Michael

Kavanagh had died as a result of a tragic accident in October 2005, and that certain

monies were paid out pursuant to a death gratuity. This explanation is set out in the first

letter of 9 July 2009 as follows.

“The sale of the property in Folio 63100F County Galway was

completed. The Contract for the Sale was dated the 30th of

September, 2005 and all closing documents were executed by Mr

Michael Kavanagh on that date. The purchasers John and Kelly

Swinhoe went into possession and they were represented by Daniel

McGrath and Company Solicitors, Tuam. At that point monies were

outstanding to St. Jarlath’s Credit Union Limited. It is acknowledged

that we did not hand over the sales monies to St. Jarlath’s Credit

Union Limited. We explain this by the fact that Michael Kavanagh

died tragically in October, 2005 and a death gratuity was in place.

Part of the loan was covered by a death gratuity to an amount of what

I believe €120,000. The balance was subsequently paid by his estate

to the Credit Union. Therefore no monies are due and owing to

St. Jarlath’s Credit Union Limited by Michael Kavanagh or his estate.

We would contend that the Undertaking related to the property in

folio GY 63100F only and all monies payable thereon were payable

by Michael Kavanagh. The reference to Pat Kavanagh was

inadvertent. Further, it was disclosed to Mr. Creaven that Mr. Pat

Kavanagh had no legal interest in the property.

Pat Kavanagh never owned lands of 63100F County of Galway. I

therefore respectfully submit that I cannot be in breach of an

undertaking over title documents where the money raised on foot of

the undertaking has been discharged. The undertaking has been

discharged by funds from the estate of Michael Kavanagh.

Secondly, I cannot be held to account for title documents to a third

party who does not own the property.

I have not dealt with the title of 63100F in any way inconsistent with

the undertaking.

Patrick Kavanagh never owned the property. I understand however

that he is indebted to St. Jarlath’s Credit Union Limited and has made

an application to the High Court for Protection under the Bankruptcy

Act 1988.”

58

to any debt incurred by Mr. Patrick Kavanagh.

letters would be exhibited by the Law Society, and, further, that the Solicitor would have

an opportunity to put his view fully on record in a replying affidavit to the Society’s

application to the Disciplinary Tribunal.

the hearing of the Disciplinary Tribunal on 25 February 2010. The sequence of events

in the immediate lead up to that hearing are as follows. The Solicitor wrote to the Law

Society on 22 February 2010. The Solicitor made complaint that monies from his

practice were being withheld from him. The letter then stated as follows.

“In the interest of natural justice, I have the right to be heard and

represented, which right has been taken away from me in the method

and manner in which you, your servants or agents have withheld my

money.

I cannot be expect (sic) to travel to Dublin and attend a hearing, let

alone instruct legal representation without sufficient funds to do so.

In this regard, I would ask that you would confirm that you will move

an application for an adjournment on consent in the interest of natural

justice such that I may be afforded the right to defend myself and

further, have the right to be heard. You may remember that such

rights are Constitutional Rights.”

letter reads as follows.

“I would point out that the Society varied the Freezing Order on 7th

December 2009 and since that time, you have been permitted to go

back into your practice for the purpose of winding down your

practice. I also note that you had ample notice of the hearing of this

matter. The Society received the Form DT5 with notification of the

original hearing date of 28th January 2010 on 10th December 2009

and you would have received notification at the same time. You will

recall that that date was not suitable for the Society’s deponent, Ms.

Kirwan, and that I wrote to you on 16th December 2009 advising you

of the need to obtain a different hearing date. An application was

59

made by the Society on 28th January 2010 (recte 12 January 2010)

and the matter was relisted for hearing on 25th February 2010. The

Society was notified of the new hearing date by letter dated

14th January 2010 and you would also have been notified at the same

time. It is the case that you have known of the hearing of this matter

since in or around 10th December 2009 (some ten weeks) and the

current hearing date since in or around 14th January 2010 (five

weeks). Hence, you have had a total period of ten weeks in which to

prepare for the above hearing.

I put you on notice that the Society will be calling both the

Complainant, Mr. Mick Culkeen, and also a professional witness and

subpoenas have been issued and served for this purpose. I recall that

you attended Dublin on 11th February 2010 and you were represented

by Mr. Alan Toal B.L. in the Society’s first application to the

Tribunal against you. I am therefore surprised at your statement that

you cannot be expected to travel to Dublin and attend a hearing or

instruct legal representation without sufficient funds to do so.

If you wish to seek to adjourn this matter, please note that the Society

will strenuously oppose such an application. It is also not the

Society’s place to make an application for an adjournment. It is up

to you to make an application for an adjournment and if you wish to

do so, you should do this ideally before the actual hearing date. It is

up to you to move the application and if you wish to do so, this should

be done before the hearing date i.e. today or tomorrow. If you intend

to make such an application, then the Society will need to be put on

notice so that it can oppose that application.

Please note that in the absence of the application to adjourn the

matter, the Society intends to proceed with the hearing on Thursday

25th February 2010.”

reads as follows.

“Whilst Mr. Irwin is correct, he fails to detail the fact that his nominee

holds all my funds.

I am not in a position to retain legal representation and would be at

an unfairly disadvantage in this regard. Further, I wish to maintain

my right to be heard and call witness, to defend the matter in full.

This cannot happen when any and indeed all limited funds available

are required to maintain my wife and two children.

I therefore seek an adjournment so that I may defend the matter in

full in accordance with natural and constitutional justice.”

60

adjournment and did not attend at the hearing on 25 February 2010. The transcript of the

hearing has been exhibited in these proceedings. As appears from the transcript, at the

commencement of the hearing, counsel acting on behalf of the Law Society expressly

referenced the relevant correspondence. The chairman of the Disciplinary Tribunal

confirmed that the members of the tribunal had been furnished with copies of the

correspondence. Counsel for the Law Society made a detailed submission as to why the

proceedings should not be adjourned. Counsel referred, in particular, to the history of

the disciplinary process to date; to the fact that the Solicitor had not filed a replying

affidavit; and to the fact that the Solicitor had, in his correspondence of 9 July 2009,

expressly confirmed that he was now in “a position to fully respond to the allegation”

that he was in breach of the undertaking.

of the Law Society were accepted, and ruled that the matter should proceed.

that the credit union never received the title deeds or value in place of them.

been instructed by Mr. Michael Kavanagh’s widow, but had not received a file or

undertaking in respect of the lands under folio 63100F.

SOLICITOR’S POSITION

obtained by way of discovery in High Court proceedings taken against him by the credit

union (St. Jarlath’s Credit Union Ltd v. Coleman; High Court 2009 No. 8378 P.), and

(ii) having located his original files, he is now in a position to establish that the

61

undertaking in respect of Mr. Patrick Kavanagh had been discharged at the date of the

complaint. (See, in particular, Mr. Coleman’s affidavit sworn herein on 23 May 2019).

concerned, the undertaking of 16 February 2004 had been confined to a single loan in the

sum of €50,000. It is said that Mr. Kavanagh subsequently drew down two loans from

Irish Nationwide Building Society in April 2005 for the express purpose of refinancing

his loans with the credit union and to release equity on a principal private residence. Two

payments, in the sum of €270,000 and €109,000, respectively, were then made on behalf

of Mr. Patrick Kavanagh by the Solicitor. A copy of the relevant covering letters dated

10 May 2005, and 29 July 2005, have been exhibited. The letter of 10 May 2005 reads

as follows.

“We enclose herewith cheque in the sum of €270,000.00 to clear

account no. 21126 on behalf of our client Patrick Kavanagh.

You might kindly acknowledge safe receipt and confirm that our

Undertaking is discharged.”

credit union (Member No. 21126) has been exhibited. As appears therefrom, the account

is, in effect, a rolling account, whereby loan repayments and advances are all recorded

on the one ledger, with the cumulative balance being shown after each transaction. This

is to be contrasted with the approach taken by other financial institutions which tend to

assign separate account numbers to different loans.

been credited to Mr. Kavanagh’s account, there was a cumulative balance of €341,532.65

outstanding as of 4 August 2005.

is exhibited at “DC13” of Mr. Coleman’s affidavit of 10 October 2019 sworn in

62

proceedings 2010 No. 65 SA). Mr. Kavanagh sets out his understanding of the

circumstances leading up to the issuing of the undertaking on 16 February 2004 as

follows.

“6. I required working capital for the two building projects and I

attended with Tom Creaven, Manager of St. Jarlath’s Credit

Union Limited on the 16th day of February 2004. I told Tom

Creaven that I was building two house, one for myself in

Kilcoona and one for my brother in Kilbannon and that both

houses were in the course of construction. I asked for a loan

of €50,000.

7. Tom Creaven asked for security for the loan of €50,000. I

telephoned Daniel Coleman and asked him to fax over an

undertaking to Tom Creaven over the house at Kilbannon

which was folio 63100F County Galway. I was due €120,000

from the building works and it was usual practice for us to

sell properties by way of a contract for sale for the site and

building agreement for the house. Daniel Coleman faxed

over the undertaking for the attention of Tom Creaven which

referred to folio 63100F County Galway which was Michael

Kavanagh’s site.”

had not been relied upon by the credit union in respect of further borrowings.

“12. The undertaking of the 16th February 2004 was never relied

upon by Tom Creaven or St. Jarlath’s Credit Union Limited

in the application for or approval of any of my eight

subsequent loans detailed at paragraph 11. Tom Creaven

approved each of the eight subsequent loans which were

granted without any discussion, mention or reliance on the

undertaking of 16th February 2004. For the avoidance of any

doubt, the 8 subsequent loans were approved without any

reliance on the lands of folio 63100F County Galway or in

the alternative without reliance on a property known as

Kilbannon, Tuam, County Galway.”

63

SOLICITOR’S CHALLENGE TO THE FINDINGS OF MISCONDUCT

(a). Failure to grant an adjournment

acted in breach of fair procedures and constitutional justice in “summarily” refusing his

application to adjourn the hearing scheduled for 25 February 2010.

(b). Alleged failure to submit points of defence

his failure to attend the hearing, this did not excuse the due process obligations of the

Disciplinary Tribunal. Rather, it is said, it enhanced them. In particular, it is submitted

that the Disciplinary Tribunal should have put the content of the Solicitor’s letter dated

19 November 2008 to the witness from the credit union, Mr Culkeen. This is a reference

to a letter written by the Solicitor to the credit union in response to the latter’s ongoing

enquiries in respect of the undertaking. The Solicitor had requested that the credit union

furnish the following documents by return: (1) a copy of the undertaking; (2) a copy of

the loan agreement duly signed; (3) the amount of monies advanced; (4) the amount of

repayments made (if any); and (5) details of any special conditions. It does not appear

that this letter was ever replied to.

(c). Alleged failure to adequately investigate the complaint

investigation of the complaint included consideration of a matter as “rudimentary” as the

loan account statements, then the Complaints and Client Relations Committee would

have been put on enquiry as to the repayments.

64

(d). Alleged material non-disclosure led to errors of fact that became errors of law

25 February 2010. The statement of account, which has since been exhibited as part of

these proceedings, records the crediting of the payments of €270,000 and €109,000 on

12 May 2005, and 4 August 2005, respectively. It is also alleged that the credit union

failed to disclose a previous complaint which had been made by it to the Law Society.

This complaint had been made in respect of the account of the late Michael Kavanagh,

and bore the reference “S8347/27/C/3/2”.

stamped as having been received on 6 December 2006). This is a letter from Concannon

and Meagher Solicitors on behalf of the credit union to the Law Society, and the relevant

part reads as follows.

“We can confirm that the monies owing to our Client, St. Jarlath’s

Credit Union Ltd., Tuam have now finally been paid on foot of the

Life Policy paid out on the Late Mr. Michael Kavanagh. We are now

in the process of clearing up related issues so that our files can be

closed on same.

Insofar as the amounts owing have been paid, our Client no longer

wishes to pursue the Complaint against Mr Coleman on foot of his

Undertakings to our Client.”

“39. Also when going through what was discovered by St Jarlath’s Credit

Union I saw that the file copy of the letter of the 6th December 2006

had been altered to conceal the release of all undertakings on behalf

of Michael Kavanagh. This had the effect that anybody looking at

the file would not realise that the alleged undertaking that I stood

accused of breaching (and actually at this stage had been convicted

and struck off the Roll of Solicitors for so breaching) had in fact been

discharged. I beg to refer to a copy of the altered letter from

Concannon and Meagher (the then solicitors for the Credit Union)

dated 6th December 2006 […]. I can only presume that the letter was

altered to hide the payment and the compliance with the undertakings.

40. It can be seen from the foregoing that all undertakings granted to St.

Jarlath’s Credit Union by my office for Patrick Kavanagh were

discharged on 10th May 2005. All undertakings granted to St.

65

Jarlath’s Credit Union for Michael Kavanagh had been discharged by

6th December 2006. This was confirmed by the (unaltered) letter of

6th December 2006 from Concannon and Meagher to the Law Society

releasing all undertakings found at DC 14. For completeness, I

confirm that a separate loan of Patrick Kavanagh was paid off by my

office. Therefore there can be no doubt that any possible liability of

my office to St Jarlath’s Credit Union in respect of Michael and

Patrick Kavanagh and the undertaking of 16th February 2004 had all

been discharged by 6th December 2006.”

(e). Alleged failure to apply any test for reliance on the undertaking

tribunal in determining whether there has been a breach of an undertaking must be

satisfied beyond a reasonable doubt (a) that the undertaking was granted by the solicitor

concerned, and (b) that the undertaking was relied upon by the relevant financial

institution. Whereas it is accepted that the Solicitor granted the undertaking, it is disputed

that the undertaking had been relied upon by the credit union. The Solicitor also

maintains that the undertaking had been discharged. It is submitted that the relevant

records, e.g. the loan promissory notes, demonstrate clearly that there had been no

reliance on nor requirement for security in the form of an undertaking save for the loan

of €50,000 granted on 16 February 2004.

(f). Alleged failure to quantify the loss in making an order for restitution

obtained—an order that the sum of €320,000 be paid in restitution to the credit union.

No equivalent order is sought as part of the remitted application to the High Court.

pursues before the High Court, and further suggests that the Law Society might not be

pursuing the application for restitution from a “tactical perspective”, and to avoid cross-

examination of Mr. Culkeen.

66

part of the Disciplinary Tribunal to search out and obtain this correspondence as part of

its inquiry in February 2010. The Disciplinary Tribunal is said to have been under an

obligation to do so notwithstanding that the Solicitor chose not to participate at the

hearing, and had indicated in correspondence that he had “now obtained the relevant

information to answer the complaint of Saint Jarlath’s Credit Union”, and that he was in

“a position to fully respond to the allegation”. (See paragraph 165 above).

FINDINGS OF THE COURT RE: UNDERTAKING TO CREDIT UNION

credit union are not sustainable, in the sense that that term is used in Law Society of

that the members of the Disciplinary Tribunal had not been provided with all relevant

documentation. The case presented to the Disciplinary Tribunal by the Law Society—

and reprised before this court—is superficially attractive. The undertaking is said to be

in very straightforward and simple terms: the Solicitor was to hold the title deeds on trust

to the order of the credit union. The fact that the lands were sold on 30 September 2005

is said to represent a breach of these terms.

has been made available to the Solicitor subsequently, as part of the discovery process in

the proceedings taken as between the credit union and the Solicitor (St. Jarlath’s Credit

Union Ltd v. Coleman; High Court 2009 No. 8378 P.) that the Solicitor had, in fact,

written to the credit union seeking to be discharged from the undertaking. More

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specifically, the Solicitor had written to the credit union on 10 May 2005 in the following

terms.

“We enclose herewith cheque in the sum of €270,000.00 to clear

account no. 21126 on behalf of our client Patrick Kavanagh.

You might kindly acknowledge safe receipt and confirm that our

Undertaking is discharged.”

he had not come across any documentary evidence to demonstrate that the undertaking

had been released. Mr. Culkeen expressed his “opinion” that whoever had dealt with the

letter of 10 May 2005 may have said that, as Mr. Kavanagh’s account was not being

cleared in full by the payment of €270,000, there was no question of the undertaking

being discharged.

the relevant time, and only took up his position as chief executive some years later in

2007. The witness was thus not in a position to give direct evidence as to the events of

2005).

that he could not say with certainty that a document which released the Solicitor from the

undertaking might not exist. The witness had earlier confirmed that there was no copy

of a reply to the letter of 10 May 2005 on the credit union’s file.

payment in the sum of €109,000 had been put before the Disciplinary Tribunal at its

hearing on 25 February 2010. The witness on behalf of the credit union had been asked

whether there was anything on the file to suggest that the Solicitor had been released.

His reply was as follows.

“Q. And from your knowledge of the Credit Union file was there

anything there to suggest the Credit Union had ever released

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Mr. Coleman from the undertaking or consented to anybody

else stepping in?

A. No, we would formally deal with both. If there was such

request, there would be a letter there either discharging it or

giving permission for someone else to take it over.”

July 2005 between the Solicitor and the credit union had not been put before the

Disciplinary Tribunal. The correspondence was relevant and should have been made

available. The correspondence must, presumably, have been in the possession of the

credit union in that it has subsequently been made available by the credit union to the

Solicitor by way of discovery in proceedings taken by the credit union to seek to enforce

the undertaking.

appropriateness of relying on discovery from other proceedings by either the Law Society

or the credit union (who held a watching brief on the hearing before me). I propose to

have regard to this documentation, by reference to the principles in Cork Plastics

to the letter of 10 May 2005. In particular, the credit union cannot say with certainty

whether the undertaking might, in fact, have been released. This is not a fanciful

possibility. As set out earlier, Mr. Patrick Kavanagh has averred, in his affidavit of

30 August 2019, that the credit union had granted each of the eight subsequent loans

without any discussion, mention or reliance on the undertaking of 16 February 2004. Mr.

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Kavanagh has also averred that the payment of 10 May 2005 had been preceded by a

telephone call between the Solicitor’s office and Mr. Creaven in which it was stated that

the proposed payment of €270,000 was to clear the loan of €50,000 and to release the

undertaking. (See paragraph 16 of the affidavit). If all of this be correct, then the credit

union might well have released the undertaking once the initial borrowings of €50,000

had been paid off, as is now asserted on behalf of the Solicitor.

complaint against the Solicitor in respect of an alleged breach of an undertaking in respect

of Mr. Michael Kavanagh. See the letter of 5 December 2006 cited at paragraph 186

above. The fact that no reference is made in the letter to an alleged breach of the

undertaking insofar as Mr. Patrick Kavanagh is concerned is consistent with a decision

having been taken by the then management of the credit union that all issues in respect

of the undertaking had been resolved. In this regard, it will be recalled that the alleged

breach of the undertaking, i.e. the sale of the lands under folio 63100F, had occurred

more than a year earlier in September 2005, and was relevant to both of the Kavanagh

brothers. If, as now maintained by the credit union, there was an outstanding breach,

then it is surprising that it is not mentioned in the letter of 5 December 2006, and that the

complaint only surfaced in January 2009, i.e. some two years later.

This is because this court’s function, on this application, is confined to assessing whether

the findings of misconduct have a sustainable basis. It is sufficient for this purpose to

hold that the allegation that the Solicitor breached the undertaking has not been

established beyond a reasonable doubt. The state of the evidence is such that it cannot

reasonably be excluded that the credit union did, in fact, release him from his undertaking

in response to the letter and payment of 10 May 2005.

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release of the undertaking, only to a request to be released. It is said that this is a central

gap in the proofs to be put forward on behalf of the Solicitor.

issued or that the Solicitor has failed to “proof” his case, this is inconsistent with the

burden of proof which lies on the Law Society. The onus is upon the Law Society to

establish beyond a reasonable doubt that the alleged misconduct occurred. For the

reasons detailed above, the state of the evidence admits of a reasonable interpretation

which is consistent with the Solicitor’s innocence.

sustainable basis for same. The position can also be analysed from the perspective of

procedural fairness. The hearing on 25 February 2010 was unfair in that not all relevant

material had been put before the Disciplinary Tribunal. In particular, the details of (i) the

correspondence and payments of May and July 2005, and (ii) the withdrawal of the

previous complaint on 5 December 2006, should all have been put before the members

of the Disciplinary Tribunal.

in circumstances where the Law Society subsequently sought—and initially obtained—

an order requiring the Solicitor to make restitution in the sum of €320,000. The factual

basis for this order was never properly established. There was, for example, no evidence

as to the value of the lands the subject of the undertaking. Mr. Kavanagh has averred

that the lands were sold for €160,000 in September 2005. On the authority of Allied Irish

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the undertaking insofar as it recovered monies in respect of Mr. Michael Kavanagh’s

insurance policy.

difficulties in this case could have been avoided had the Solicitor attended at the hearing

on 25 February 2010. The Solicitor should have attended at the hearing, and it was

wrongheaded of him not to do so, if even only for the purpose of seeking an adjournment.

Given his failure to attend, the Disciplinary Tribunal acted within its jurisdiction in

refusing to adjourn the proceedings for the reasons detailed by counsel for the Law

Society and cited with approval by the chairman of the Disciplinary Tribunal. The

Solicitor had been on notice of the hearing date for a number of weeks. More

importantly, the Solicitor had, in his correspondence of 9 July 2009, expressly confirmed

that he was now in “a position to fully respond to the allegation” that he was in breach

of the undertaking. The Solicitor had also been in a position to obtain legal representation

at the hearing in respect of the first complaint less than two weeks earlier. No proper

explanation had been provided as to why it was that he now claimed to be unable to

obtain representation. Insofar as the Solicitor has sought to criticise the decision not to

adjourn, I reject that submission.

were obliged to ensure that all relevant material was put before the Disciplinary Tribunal.

The Law Society should have sought out more information in respect of the payments on

the credit union account. It should also have put the withdrawal of the previous complaint

before the Disciplinary Tribunal.

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ADMISSION OF MR. KAVANAGH’S AFFIDAVIT

findings of misconduct, I have had regard to the affidavit evidence of Mr. Kavanagh and

to other material which had not been before the Disciplinary Tribunal. Counsel had been

allowed to refer to this evidence de bene esse at the hearing before me in March 2020,

with a ruling on its admissibility to be made as part of the reserved judgment on the

application.

appeal as set out by the Supreme Court in Murphy v. Minister for Defence

[1991] 2 I.R. 161. Counsel for the Solicitor, however, emphasised that the principles

apply by analogy only, in that the application currently before the court is not an appeal

as such. Counsel also draws attention to passages in Law Society of Ireland v. Coleman

reported judgment).

“1. The evidence sought to be adduced must have been in existence at

the time of the trial and must have been such that it could not have

been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an

important influence on the result of the case, though it need not be

decisive;

3. The evidence must be such as is presumably to be believed or, in

other words, it must be apparently credible, though it need not be

incontrovertible.”

exercised by the court under section 8 of the Solicitors (Amendment) Act 1960, they

nevertheless provide useful guidance as to the type of considerations to be taken into

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account. I am satisfied that it is in the interests of justice to admit the new evidence in

this case. The Solicitor had been at a significant disadvantage in defending the

allegations against him given that, by the time the complaint came to be made, the

relevant client files had been transferred to other law firms. The Solicitor did not have

access to the files. Moreover, he did not have access to the files held by the credit union,

including copies of the accounts, recording the payments made in the summer of 2005,

and the copy correspondence. It does not appear that the credit union ever responded to

his letter of 19 November 2008 requesting copies of the relevant documentation.

The complaint was submitted to the Law Society in January 2009, which is some four

and a half years after the undertaking had been given, and more than three years after the

event said to constitute the breach, i.e. the sale of the lands in September 2005, had

occurred. The Solicitor cannot be criticised for not having an immediate recollection of

events of such a vintage, without sight of the documentation. For this reason, the findings

that he failed to adequately respond to correspondence from the Law Society and the

credit union are not sustainable.

by the Solicitor prior to the hearing in February 2010. The Law Society should have used

its statutory powers to secure the evidence. The two other criteria under Murphy are also

met: the evidence would have had an important influence on the outcome of the case, and

is credible.

INCONSISTENCY WITH EARLIER JUDGMENT

undertaking to the credit union are unsustainable, has the consequence that there is some

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inconsistency between this judgment and the earlier judgment delivered in respect of the

application for an extension of time to appeal. More specifically, in determining whether

or not to grant an extension of time to appeal, this court had to assess the strength of the

proposed grounds of appeal. As set out at paragraphs 152 to 158 of the judgment of

7 April 2020, this court concluded that arguable grounds of appeal, within the meaning

threshold for setting aside findings of misconduct as unsustainable is higher than that for

an appeal. (See discussion at paragraphs 46 et seq. above). It must follow, therefore,

that had the arguments advanced on behalf of the Solicitor in the context of the “strike

off” application been made instead in the context of a statutory appeal under section 7(13)

of the Solicitors (Amendment) Act 1960, then such an appeal would inevitably have been

successful. The conclusion in the earlier judgment that there were not strong grounds of

appeal has thus transpired to be incorrect.

affidavit of Mr. Patrick Kavanagh of August 2019, which is central to this court’s

determination, had been submitted in the context of the “strike off” application as

opposed to the application for an extension of time. Moreover, different functions were

being exercised by the court upon the two applications. It does not automatically follow

that a more positive assessment of the strength of the appeal would have resulted in the

grant of an extension of time. As discussed in detail in the judgment of 7 April 2020, the

judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately

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delivered a single omnibus judgment on both applications. This would have ensured that

the was an appropriate crossover between the matters considered in each of the

applications. As noted earlier, however, the parties’ preference had been that two

separate judgments would be delivered.

the Solicitor. This is because the Solicitor has achieved his objective in having the

findings of misconduct in respect of the credit union undertaking set aside. The fact that,

procedurally, this has been achieved in the context of the “strike off” application, rather

than in the context of a statutory appeal, does not make any substantive difference. The

same result has eventuated. Of course, the Solicitor will be entitled to make submissions,

if he so wishes, in respect of the consequence of this in terms of the appropriate costs

order to be made.

SERVICE OF REPORT OF THE DISCIPLINARY TRIBUNAL

issue the question of whether the motion papers in respect of the “strike off” application

had been properly served upon him in July 2010.

off” application in March 2020. As the Law Society correctly point out in their written

submission, the oral hearing in respect of the Fairview Construction Ltd matter had been

concluded without any reference to the issue of service.

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particular, it is entirely artificial to suggest that the Solicitor had not been served with the

motion papers in circumstances where he had actually appeared before the then President

of the High Court on 26 July 2010. Moreover, the Solicitor has since filed detailed

affidavits in response to the Law Society’s application, and participated fully in the

hearing under section 8 of the Solicitors (Amendment) Act 1960. Having done so, the

Solicitor must be taken to have acquiesced in any alleged failure to serve the papers

within time.

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PART IV

APPROPRIATE SANCTION

(Amendment) Act 1994 and as further amended by the Solicitors (Amendment) Act

2002) provides as follows.

(a) the High Court, after consideration of the report—

(i) may by order do one or more of the following things, namely—

(I) strike the name of the solicitor off the roll;

(II) suspend the solicitor from practice for such specified period

and on such terms as the Court thinks fit;

(III) prohibit the solicitor from practising on his own account as a

sole practitioner or in partnership for such period, and subject

to such further limitation as to the nature of his employment,

as the Court may provide;

(IV) restrict the solicitor practising in a particular area of work for

such period as the Court may provide;

(V) censure the solicitor or censure him and require him to pay a

money penalty;

and, in making any such order, the Court shall take account of any

finding of misconduct on the part of the respondent solicitor

previously made by the Disciplinary Tribunal (or by their

predecessor, the Disciplinary Committee) and not rescinded by the

Court, and of any order made by the Court under the Solicitors Acts,

1954 to 2002, in respect of the respondent solicitor;

of the judgment).

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“[…] the High Court, as pointed out, must satisfy itself that the

findings of misconduct have a sustainable basis and secondly, must

form an independent view as to what sanction is appropriate to such

findings. In so doing, particularly with sanction, regard will be had

to the circumstances giving rise to such findings, the factors offered

in mitigation (if any) and the personal circumstances of the subject

solicitor (if known): all viewed within the background of the court

having to be satisfied that its decision will reflect public confidence

in the solicitor profession and overall will not negatively impact on

the administration of justice.”

is to be found in the judgment of the Supreme Court in Carroll v. Law Society of Ireland

79

individuals and their families, the same must be regarded as

a likely result of such a finding;

(ix) however, such an outcome should not be regarded as a

certainty and should not be applied in some mathematical or

formulistic way. The sanction imposed may, if appropriate,

have a punitive and dissuasive element to it; it will always be

influenced by the necessity to maintain the public policy

considerations underpinning the regulatory and judicial

approach to the solicitors’ profession. In addition, however,

given the constitutional dimension involved, the penalty must

be proportionate both to the misconduct as established and to

the considerations as mentioned;”

submissions of 12 June 2020, on the judgment of the High Court (Kelly P.) in Law

admitted to causing or allowing a “fictitious contract” to come into existence for the

purpose of “misleading” a financial institution into advancing monies to a development

company. The circumstances of the offence have been set out in detail earlier, and can

be summarised as follows. It had been a condition precedent to the release of part of the

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funds under a loan agreement that the borrower’s solicitor confirm in writing that

“unconditional and irrevocable” contracts with deposits paid were in place. The

Solicitor has admitted, in his affidavit of 12 June 2009, that he sent a letter to ACC Bank

advising that the development had been sold.

The contracts for sale which had purportedly been signed in trust by another solicitor

could not have been enforced against the purchaser. The signature of the other solicitor

had been improperly placed on the contracts for sale by the Solicitor. This was done

without the authority of the other solicitor, Mr. O’Donnell. There are no circumstances

in which it would be proper for one solicitor to place another solicitor’s name on a

contract without the written authority of the latter, and without indicating on the contract

that the signature was not that of the other solicitor.

financial institutions, can have the utmost trust in the integrity and probity of solicitors.

A solicitor’s word is his or her bond. If a solicitor confirms that a particular state of

affairs exists, then the recipient is entitled to rely on that confirmation. (Although not

directly relevant to this case given my conclusions on the second set of disciplinary

proceedings, the beneficiary of a solicitor’s undertaking is similarly entitled to rely on

the express terms of that undertaking).

was dishonest, rather than merely negligent or careless. In the circumstances, the

sanction of dismissal will be a front line consideration (Law Society of Ireland v.

Coleman).

alleged that the conduct of the Solicitor resulted in any loss being incurred by the

81

financial institution. It seems that an agreement for the sale of the lands was subsequently

reached between the parties some eleven months later, and that the loan to ACC Bank

has been paid off. Secondly, this is a first offence by the Solicitor. Thirdly, the Solicitor

had, initially, co-operated in the disciplinary proceedings, and had made a number of

admissions of fact at the hearing on 10 February 2010. Of course, the weight to be

attached to this mitigating factor is greatly reduced by the subsequent conduct of the

Solicitor in attempting to resile from these admissions. Finally, as noted earlier, reliance

is placed on the Solicitor’s personal circumstances as disclosed in his replying affidavit,

that the appropriate sanction in this case is an order striking the name of the Solicitor off

the Roll of Solicitors. There is a public interest in ensuring that the integrity of the

solicitors profession is maintained. This is especially so in respect of conveyancing

transactions. Here, the making of a strike off order is necessary to advance this public

interest. It would undermine trust in the profession were a solicitor, who has been found

guilty of dishonesty in a conveyancing transaction, to be allowed to continue in practice.

The sanction imposed may, if appropriate, have a punitive and dissuasive element

(Carroll v. Law Society of Ireland).

the imposition of restrictions on the right to practice, might be imposed instead. I am

satisfied that such a lesser sanction would not be proportionate to the gravity of the

misconduct in this case. The misconduct involved a cavalier disregard of the importance

of ensuring that contracts for sale are properly executed and can be relied upon by all

parties. The admitted purpose had been to mislead a financial institution into advancing

funds to the clients of the Solicitor. If unchecked, conduct of this type runs the risk of

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undermining the efficacy of lending in respect of development projects. More generally,

it undermines confidence in the role of a solicitor in conveyancing transactions.

justify the imposition of a lesser sanction. Whereas the Solicitor had been faced with

difficult personal circumstances, including serious health issues affecting close family

members, this does not ameliorate the gravity of his misconduct. Difficult personal

circumstances might, at most, provide context for misconduct consisting of inattention

to the detail of practice management, but such difficulties cannot excuse dishonest

behaviour of the type at issue here. Further, it is to be noted that the health issues arose

at a date subsequent to the key events (which it will be recalled, occurred during the

period April 2004 to July 2004). This distinguishes the facts of the present case from

Daniel Coleman’s name off the Roll of Solicitors, pursuant to section 8 of the Solicitors

(Amendment) Act 1960 (as substituted by the Solicitors (Amendment) Act 1994 and as

further amended by the Solicitors (Amendment) Act 2002).

be dismissed.

of the delivery of judgments electronically, as follows.

“The parties will be invited to communicate electronically with the

Court on issues arising (if any) out of the judgment such as the precise

form of order which requires to be made or questions concerning

costs. If there are such issues and the parties do not agree in this

regard concise written submissions should be filed electronically with

the Office of the Court within 14 days of delivery subject to any other

83

direction given in the judgment. Unless the interests of justice require

an oral hearing to resolve such matters then any issues thereby arising

will be dealt with remotely and any ruling which the Court is required

to make will also be published on the website and will include a

synopsis of the relevant submissions made, where appropriate.”

form of order, and on the question of legal costs. In default of agreement between the

parties on these issues, short written submissions should be filed in the Central Office.

The first set of submissions should be filed by the Law Society by 9 October 2020; the

Solicitor is then to file his replying submissions by 30 October 2020. A copy of the

submissions is to be uploaded to the designated ShareFile folder.

Appearances

Shane Murphy, SC and Neasa Bird for the Law Society instructed by A & L Goodbody

Paul Comiskey O’Keeffe for the respondent solicitor instructed by John P. O’Donohoe

Solicitors