Supreme Court of Ireland Decisions

1. The statutory background to the proceedings should first be set out. The procedure under which the name of a solicitor may be struck off the roll is laid down in s. 8 of the Solicitors (Amendment) Act, 1960 (hereafter “the 1960 Act ”). Section 8(1)(a)(i) empowers the High Court to strike the name of a solicitor off the roll after consideration of a report of the Disciplinary Committee of the Society made under s. 7 of the 1960 Act. Section 10 of the 1960 Act then provides:-

2. In this case, the solicitor, who had been struck off the roll, made an application to the High Court pursuant to s. 10 for an order restoring his name to the roll and it is not in dispute that this application was affected by the provisions of subsection (4). The learned President refused the application on the ground that he was not satisfied that, having regard to all the evidence, the applicant was a fit and proper person to practise as a solicitor. He said, however, that he was not satisfied that the restoration of the applicant to the roll would adversely affect public confidence in the solicitors’ profession as a whole or in the administration of justice. It is in respect of the latter finding by the learned President that the notice to vary in the present case is brought by the Society.

3. The facts, which are not in dispute, are as follows. The solicitor was admitted in 1973 and practised under the style and title of Frank Burke and Company Solicitors, until the 13th May 1991, when his name was struck off the roll by Hamilton P., as he then was. That was the result of a petition dated the 15th April 1991. The Disciplinary Committee had found that the solicitor had been guilty of a number of breaches of the Solicitors’ Accounts Regulations and of conduct tending to bring the solicitors’ profession into disrepute. The solicitor had, at the conclusion of a lengthy investigation, admitted that a deficit existed on the client account of the practice in the sum of £120,429.70. He also admitted to other breaches of the regulations, including the misappropriation of clients’ funds. There were in all thirty allegations of misconduct found to have been proved or admitted by the solicitor.

4. There had been an earlier investigation of the solicitor in 1985 which also led to hearings before the Disciplinary Committee. Four separate allegations of misconduct were dealt with in that hearing and led to a recommendation by the Disciplinary Committee that the solicitor be struck off the roll. Hamilton P., as he then was, did not make an order striking the solicitor off the roll, but, in the light of the report of the Disciplinary Committee, he censured the solicitor and ordered him to pay a fine of £20,000. It is accepted that this was the largest fine up to that time imposed by the High Court in the case of a solicitor found guilty of misconduct.

5. It should be pointed out that the solicitor, in the course of an affidavit sworn by him in these proceedings, made commendably candid admissions. As to the 1985 investigation, he said

6. In relation to the 1991 investigation which led to his being struck off, he said:

7. On foot of a further petition brought at the same time, the High Court censured the solicitor and ordered him to pay £600 towards the costs and expenses of the proceedings. That was as the result of his failing to furnish his client with an itemised bill of costs for the purpose of taxation, delaying in placing a sum of £5000 on joint deposit receipt and returning the deposit receipt and delay in handing over a sum of £6, 114.49 to his client.

8. A further complaint in relation to the solicitor came before the High Court on 29th March 1995. This related to a visit by a Mr. Philip Von Der Recke to an office where Mr. Burke’s wife was practising as a solicitor on the 16th May 1994. Mr. Von Der Recke, who was accompanied by his two brothers, met Mr. Burke on that occasion and said that the latter conducted himself as though he were a solicitor and never indicated at any stage that he was not. That incident led to the issuing of injunction proceedings by the Society, which were compromised by a consent entered into on the 25th March 1995 with Mr. Burke undertaking to the court that he would not attend at or in any premises at which his wife was carrying on or might carry on in the future her practice as a solicitor. He also made a contribution of £5,000 towards the costs of the plaintiff.

9. In one of the affidavits grounding this application, the solicitor said that he had paid to the Society in respect of his liabilities arising out of their investigations a total sum of £143,866.74. He said that his ability to repay these amounts arose out of the sale of a number of sites which he had purchased some years ago.

10. Twenty-nine affidavits were also filed in support of the solicitor’s application by solicitors practising in the Galway area. These affidavits were all broadly to the same effect, i.e. reflecting the views of the deponents that the solicitor had paid a heavy price for his previous misconduct and that they hoped he might be given another chance by having his name restored to the roll. Four solicitors also practising in the area gave oral evidence to that effect at the hearing before the President and also said that, in their view, the circumstances which had led to the order striking him off were not known to the general public or indeed to most members of the solicitors’ profession and that his restoration to the roll would not adversely affect public confidence in the solicitors’ profession.

11. The applicant also said in one of the affidavits sworn by him that

12. Having heard the evidence to which I have referred and submissions from counsel, the learned President said:-

13. He went on, however, to say:

14. In this court, Mr. Colm Allen S.C. on behalf of the applicant submitted that this was in law an erroneous finding by the President. He said that subsection (4) expressly empowered the High Court to restore a solicitor’s name to the roll, “either conditionally or unconditionally” . Accordingly, the mere fact that the applicant was prepared to submit to a condition that he should not handle money could not of itself have as its consequence a finding that he was not a fit and proper person to practise as a solicitor.

15. There can be no doubt that subsection (4) envisages that a solicitor may be restored to the roll, although the circumstances which gave rise to his being struck off involved an act or acts of dishonesty on his part. But it is also clear that, before the court can accede to such an application, it must be satisfied that the two preconditions imposed by the subsection are met and that the onus of so satisfying the court is on the applicant. It is also clear that both these preconditions must be met where, as here, the applicant is applying for a conditional certificate only.

16. As I have noted, subsection (4) did not appear in section 10 of the 1960 Act as originally enacted. It was inserted for the first time by the 1994 Act. In determining how subsection (4) should be applied in individual cases such as the present, it is important to bear in mind that the Oireachtas, in cases which are within the subsection, thought it necessary to make special provision for such cases and, in particular, to require that the two specific preconditions be met before the solicitor’s name is restored.

17. A member of either branch of the legal profession enjoys rights and privileges in representing and advising members of the public denied to others. The public are, accordingly, entitled to repose a high degree of trust in both barristers and solicitors in the conduct of their respective professions. Unlike barristers, solicitors are regularly entrusted with the custody of monies belonging to their clients and, if public confidence in the solicitors’ profession is to be maintained, any abuse of that trust must inevitably have serious consequences for the solicitor concerned. Viewed in that context, the range of cases in which a solicitor who has been struck off because of dishonesty can properly be restored to the register pursuant to subsection (4) is, of necessity, significantly limited. In a case where the acts of dishonesty appear to have been wholly out of character and were committed when the solicitor was under severe pressures of some kind, the exercise of the discretion vested in the court in his or her favour may be justifiable. The fact, if it be the fact, that in his or her subsequent career, the solicitor had been entrusted with positions of trust and responsibility without any further lapses would be an additional factor in enabling the court to exercise the jurisdiction in his or her favour. However, it would be inappropriate to attempt an exhaustive definition of the circumstances in which a solicitor might properly be restored to the rolls in cases to which subsection (4) apply: it is sufficient to emphasise again that the category of cases in which re-admission to the profession is permissible will inevitably be limited. That this is the approach which should be adopted is, I think, borne out by the authorities from other jurisdictions which were cited in the course of argument: see the observations of Lord Donaldson MR in In the Matter of a Solicitor No. 5 of 1990 and In the Matter of the Solicitors Act 1974 (unreported: judgment delivered Friday, 27th April 1990) and of the majority of the High Court of Australia in Ex-parte Lenehan (1948) 77 CLR 403.

18. The issue that arises on this appeal is as to whether, in the light of these principles, the learned President was entitled to refuse the present application on the ground that the solicitor had not satisfied him that he was a fit and proper person to practise as a solicitor. I have no doubt that he was. It must, regrettably, be pointed out that the conduct which ultimately led to the applicant being struck off was not in any sense an isolated act explicable, if not justifiable, because of special circumstances. He had narrowly escaped being struck off for similar conduct on a previous occasion and, even after his ultimate removal from the roll, held himself out as being a solicitor. While it is to his credit that substantial repayments have been made by him, there is no indication that in the period which has elapsed since he was struck off in 1991 he has secured any employment in any position of trust or responsibility.

19. The fact that a solicitor applying for re-admission in a case to which subsection (4) apply is prepared to submit to a condition that he will not handle any money would not, of itself, mean that he was not a “fit and proper person to practise as a solicitor” . In the circumstances of the present case, however, it is further confirmation of the serious and repeated nature of the acts of dishonesty which led to the original striking off.

20. As I have already mentioned a number of solicitors gave evidence by affidavit or orally in the hearing before the President in support of the application. However, the issue as to whether the applicant was a “fit and proper person to practise as a solicitor” was solely a matter for the learned President, to be decided by him in all the circumstances of the particular case.

21. Some reliance was also placed on an observation by Hamilton P. when making the order striking off the applicant in 1991 that this was “not a life sentence” . That comment was, however, made at a time when subsection (4) had not been enacted. In any event, even in cases to which subsection (4) is applicable, striking off is not necessarily a “life sentence” since in the limited category of cases to which I have referred, of which it has not been established that this is one, restoration to the rolls is still possible.

22. I would dismiss the appeal and affirm the order of the learned President. I would make no order on the notice to vary.