THE SUPREME COURT
[268/2006]
McKechnie J.
MacMenamin J.
O’Malley J.
EAMONN CARROLL
APPELLANT/APPLICANT
AND
LAW SOCIETY OF IRELAND
RESPONDENT/RESPONDENT
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28th day of July, 2016
Introduction:
1. This appeal is from an order made by the then President of the High Court, Finnegan P., on the 28th February, 2005, whereunder, to reflect his judgment given on the 31st January, 2005, he held and so declared that Mr. Carroll was not a “fit and proper” person to be admitted to the Roll of Solicitors. That decision was but one given in a multi-layer litigation process which started in the early 1990s. It is hoped that the within judgment will finally end this protracted and complex series of disputes involving Mr. Carroll and the Society.
2. The essence of Mr. Carroll’s case is that Finnegan P. applied an incorrect legal test in assessing whether Mr. Carroll was a fit and proper person to be admitted to the solicitors’ profession, insofar as the learned President judged him by the standard that would be expected of a qualified solicitor, rather than that expected of an apprentice or, indeed, of an accident claims operator, which Mr. Carroll was also involved in at the time. In the circumstances of the case, where the finding of misconduct related to an act of dishonesty in Mr. Carroll’s dealings with a client, with associated concealment and misrepresentation, I am satisfied that the judge applied the correct standard. Although an apprentice is not expected to possess the same knowledge, skills and experience as a qualified solicitor, he or she is required to conduct him or herself with the requisite degree of probity, honesty, trustworthiness and integrity, as would be demanded of any member of the profession. Accordingly, I would not disturb the finding that the appellant is not a fit and proper person to be admitted to the Roll as a solicitor.
Background:
3. To more readily understand this judgment, it is necessary to set out some of the background, however unfortunate it may be; this, even in summary form, is a most daunting task, with the reasons for this trepidation becoming self-evident from what follows.
4. In January, 1991, Mr. Carroll became an apprentice to one Christopher Ryan, a solicitor whose principal offices at the time were at North King Street, Dublin 7. Prior to this he had worked with his brother between 1974 and 1981 and had been an apprentice solicitor to him; however, such was not completed when the latter was struck off the Roll by the High Court in 1983. In the intervening period of approximately eight years the appellant, together with two of his brothers, operated a business entitled “Accident Claims Service”, which offered advice, services and support of a kind which its name suggests, in particular regarding compensation for personal injuries. When a solicitor was required so as to advance the claim of an individual, the services of Mr. Ryan were retained by the firm.
5. After his indentures were signed, the Law Society withheld its consent to the formal recognition of the intended apprenticeship, as it was not satisfied by the evidence as to his character. The first set of proceedings between the parties then followed in 1991, in which Mr. Carroll sought an order compelling the Society to admit him as an apprentice; these were ultimately compromised, inter alia, by the Society so agreeing, after which the appellant duly proceeded to serve that apprenticeship. In addition to his study obligations, he served the apprenticeship in large measure by effectively operating a second office in the Rialto area of Dublin, in premises which had originally been used by the said Accident Claims Service. He had much freedom and even more autonomy in this enterprise, apparently with his Master’s approval.
6. On the 16th February, 1993, an accountant was appointed by the Law Society to conduct an investigation into the practice of Mr. Ryan. In October of that year the Society’s Director of Education, Mr. Richard Woulfe, notified the appellant of a complaint(s) of misconduct made against him, which was based on information furnished by the said Mr. Ryan. Somewhat extraordinarily, however, the same Mr. Ryan, by way of a Statutory Declaration, informed the Law Society in September of that year that he was unaware of any circumstances which would suggest that his apprentice was not a fit and proper person to be admitted to the Roll of Solicitors. In any event, before the Education Committee had conducted its inquiry into this complaint(s), the same was withdrawn in October, 1993 without prejudice as to what future steps the Society might take in relation to Mr. Carroll under either the Solicitors Acts or the Regulations thereunder. Mr. Carroll then successfully proceeded to complete the remaining prescribed examinations for admission to the Roll of Solicitors.
7. The next step of significance saw the Law Society issuing proceedings on the 3rd December, 1993 (“the 1993 proceedings”), claiming that Mr. Carroll and his brothers were operating the business of Accident Claims Service in such a manner as to effectively pass themselves off as solicitors, this being in breach of s. 56(1) of the Solicitors Act 1954 (“the 1954 Act”). Mr. Ryan was also joined as a co-defendant against whom it was alleged that he was conducting his practice in such a manner as to permit the Carroll brothers to act as if they were qualified solicitors and be remunerated accordingly; if established, this course of action was contrary to s. 59 of the 1954 Act.
8. The High Court was satisfied on the evidence that such allegations against Mr. Godfrey Carroll and the appellant were justified. Nonetheless, Murphy J. dismissed the proceedings and refused to issue the injunctive relief claimed; this on the basis that only “in exceptional circumstances”, not present in the instant case, would a court grant such relief in respect of criminal conduct. In so holding Gouriet v. Union of Post Office Workers [1978] AC 435 was applied. On appeal the Supreme Court affirmed the findings of fact made by the trial court in respect of the Carroll brothers last mentioned; it likewise concurred that no civil remedy could issue but did so on the basis that the only body or entity which could enforce a public right, by way of an injunction, was the Attorney General. In respect of Mr. Ryan, both courts took the view that the allegations against him were essentially matters of potential misconduct, and as such could best be dealt with through the disciplinary process available under the Solicitors Acts. Accordingly, the appeal in its entirety was dismissed ([1995] 3 I.R. 145).
9. On the day following the decision of the Supreme Court, the 21st December, 1995, Mr. Carroll requested the Society to forward his name to the President of the High Court for the purposes of being admitted as a solicitor. The Society refused to do so, as there were outstanding allegations of misconduct in respect of the appellant which still had to be resolved. Those had been originally set out in a Notice of Complaint which was either in affidavit form or supported by an affidavit of Mr. Woulfe of 13th December, 1993; however, their investigation was not proceeded with in light of the Society’s proceedings, which overlapped the timeframe involved. It was the Education Committee which made this decision, which was not challenged.
10. With the 1993 proceedings finalised, the Education Committee then convened in May, 1996 to inquire into the allegations of misconduct made against the appellant, being those as set out by Mr. Woulfe; however, a jurisdictional objection was taken which the Committee decided to examine by way of a preliminary hearing. That led to a further set of judicial review proceedings (“the 1996 proceedings”) in which Mr. Carroll unsuccessfully challenged the legal competence of the Committee to conduct the inquiry. He was, however, in circumstances particular to him, granted a declaration that there should be at least one lay participant in the three person composition of that Committee ([2003] 1 I.R. 284). That decision of the 19th January, 1999, terminated those particular proceedings.
11. Following the judgment of McGuinness J., the Society appointed the former Chief Justice, Mr. Justice Finlay, to sit together with two solicitors, namely Ms. Anne Colley and Mr. Simon Murphy, as the duly established Education Committee of the Society. On the 18th November, 1999, twelve complaints were notified to Mr. Carroll by way of a Statement of Complaint, with a further one being added in December, 1999. Between the 30th November, 1999, and the 13th January, 2000, the Committee sat over a period of seven days to inquire into these complaints. Oral evidence was given and, when thought necessary, was tested by way of cross examination; submissions were also made the parties. The hearing resulted in adverse findings being made against Mr. Carroll, and in the allegations of misconduct being upheld to the criminal standard of proof: on such basis the Committee’s view was that the appellant was not a fit and proper person to be admitted to the Roll. It then reported this opinion and the findings so made to the President of the High Court under the appropriate Regulations.
12. By Notice of Application dated the 18th April, 2000, Mr. Carroll applied to the President to review the Committee’s decision, as provided for in Regulation 25(d) of S.I. 287/1997. However, and entirely predictably, the process did not run smoothly thereafter. On the 26th June, 2000, Mr. Carroll, by way of an ex parte application, sought leave from the High Court to challenge the report of the Education Committee. Some three days later that application was withdrawn in the High Court.
13. On the 3rd July, 2000, he served a Statement of Claim in proceedings which he had issued on the 3rd October, 1996, against Christopher Ryan, John Rogers and the Law Society (Record No. 8613P (1996)). The Society’s application to have those proceedings struck out as an abuse of process was successful, by order of Kelly J., dated the 2nd May, 2001. That matter was appealed to the Supreme Court. In addition, the Society sought to have Ground No. 3 of the Notice of Application struck out, again on the basis that it was an abuse of process. Once more, the High Court (Morris P.) acceded to that application by order dated the 13th June, 2001. A further appeal was moved to this Court from that order. Both appeals were heard together. This Court, via the judgment of Hardiman J. delivered on the 21st January, 2003, dismissed both appeals. Once again, the underlying process was interrupted as the President’s review of the Education Committee’s findings was deferred until the proceedings last mentioned had concluded.
14. In outlining that background, I am not to be taken as having thoroughly or in exhaustive detail set out the myriad of events which occurred in the preceding decade up to then. I have not, for example, referred to the decision of O’Higgins J. in Carroll v. Disciplinary Tribunal of the Law Society of Ireland [2003] 1 I.R. 278. Instead the purpose is simply to give a flavour of the prolonged nature and intensity of the ongoing dispute between the Society and Mr. Carroll, rather than to give a definitive outline of events.
The High Court Review:
15. The review eventually commenced, with the learned President duly conducting a full examination of the findings so made. Such review, which took place over several days, included hearing evidence, which was tested on cross examination when required. The appellant himself gave evidence, as did others from the Society, or as called on its behalf. Having deliberated on the evidence as adduced and having considered the submissions as made, the learned President concluded that all but two of the complaints should be dismissed. Complaint No. 3 was factually upheld, as was Complaint No. 13. However, whilst he did not believe that the former complaint amounted to misconduct when the relevant legal principles were applied, Complaint No. 13, in his view, did so amount. On that basis, he upheld the opinion of the Committee and so declared that Mr. Carroll was not a fit and proper person to be admitted to the Roll.
The Court’s Reasoning:
16. In this context, it will be helpful to briefly set out the details of both complaints, as well as the judge’s ruling on them. Even though Complaint No. 3 did not result in any sanction, it is necessary nonetheless to refer to it so as to highlight the particular approach which the President took, having regard to the then position of Mr. Carroll and the relationship which an apprentice solicitor was entitled to expect, and to have, with his Master.
17. Having outlined Complaint No. 3, namely, “[that] you, Eamonn Carroll, on dates between 1991 and 1993, did deal with the fee income of the office at Rialto so as to disguise its origin and/or its destination”, the President, although holding that the underlying factual situation was sustained, was not satisfied that such amounted to misconduct. His ruling on the matter is short and reads as follows:-
“While I have found that the appellant dealt with the fee income of the office at Rialto so as to disguise its destination, I am not satisfied that his conduct in this instance amounts to misconduct. I take into account the special relationship between a solicitor’s apprentice and his Master. I take into account the responsibility of the Master in this instance for the maintenance of the accounts in accordance with the Solicitors Accounts Regulations. Finally, I take into account the appellant’s evidence that his bookkeeping responsibilities were limited to recording receipts and outgoings in respect of the Rialto office and did not include compliance with the Solicitors Accounts Regulations. It is perhaps too much in the absence of fraud or dishonesty to expect an apprentice to direct his Master as to how he should perform his obligations pursuant to the Solicitors Accounts Regulations. The appellant on his own evidence had a concern about the practice and rightly so: however in all of the circumstances of this case and particularly when the evidence is that the liabilities to clients were properly recorded in the books maintained by the appellant … his failure to act should [not] be held to amount to misconduct.”
18. The second complaint, that is Complaint No. 13, sometimes also referred to as “the Darley complaint”, alleged:-
“[that]…you, Eamonn Carroll, in and during the year 1999 in and about your management and operation of Accident Claims Service and/or Accident Claims Limited, operated the same in a manner to unlawfully deprive Cecilia Darley of monies properly due to her and without just cause detained or sought to detain monies due to her and did so by providing her with false and misleading information”.
Having considered the evidence tendered on this ground of complaint, the learned President accepted the evidence of the complainant, Ms. Cecilia Darley, noting in the process that she had obtained a decree in the Circuit Court against Mr. Carroll for approximately €3,500; he then went on to consider whether or not the adverse findings so made were of such a nature as to amount to misconduct.
19. The learned President, who viewed the established conduct as being of the utmost seriousness, cited a passage from Lund, A Guide to the Professional Conduct and Etiquette of Solicitors (The Law Society, 1960) at p. 65, in which it is stated (i) that overcharging may but does not necessarily have to amount to professional misconduct: in many of the reported cases where such was the finding there was an element of fraud, as in the two cases which were specifically cited; and (ii) that the making of untrue representations or the concealing of material facts, with a dishonest or improper motive, was a disciplinary offence. In addition to what was stated in Lund, Finnegan P. also had regard to what Bingham M.R. had said in Bolton v. Law Society [1994] 2 All ER 486, which was that a solicitor who showed anything less than complete honesty, probity and trustworthiness in his dealings with clients “must expect severe sanctions”.
20. The President then continued:-
“I cite the foregoing [Lund] to illustrate that had the conduct of the appellant here being committed by him as a solicitor, same would have amounted to misconduct … In considering the appellant’s conduct, I take into account that he is an apprentice. However, he is a somewhat unusual apprentice having regard to the time which he spent working with his solicitor brother, his time involved in the Accident Claims Service, the time which he spent with Mr. Ryan and the further time thereafter in which he operated an accident claims business. He is of mature years having been born in or about 1965. He had attended and completed the Law Society’s professional courses. He cannot have been ignorant of the standard of conduct expected of a solicitor. I should remark however that a requirement for honesty in one’s dealings is not solely referable to a solicitor, although perhaps higher standards apply to him, but is expected of each in his dealings. I see no reason why a lesser standard of conduct should be expected of an accident claims operative in the sphere of accident claims than is to be expected of a solicitor. Taking these matters into account, I see no reason why a lower standard of conduct should be expected of the appellant here in his dealing with Miss Darley than would be expected of a solicitor. In his dealings with Miss Darley he fell very far short of that standard. I am satisfied as a result of such falling short that he is not a fit and proper person to be admitted as a solicitor.”
The court’s order reflected this judgment.
Notice of Appeal:
21. From that decision Mr. Carroll filed a Notice of Appeal, dated the 10th July, 2006, in which various grounds of challenge are set forth. In brief terms these can be described as follows:-
(i) that there was no or no sufficient evidence to establish the factual content grounding the Darley complaint;
(ii) that the trial judge was wrong to accept and/or prefer and/or in attributing the weight which he did to the evidence supporting the complaint, including that of Ms. Darley, as against the contrary evidence, which in large measure was that given by Mr. Carroll;
(iii) that there were several findings of fact and inferences drawn which otherwise were also unjustified;
(iv) that insufficient reasons were given in the judgment for the decisions above mentioned;
(v) that the Circuit Court proceedings should not have been relied upon or referred to;
(vi) that the wrong review standard was applied by the President, who should have judged the appellant by the standard expected of an accident claims operative, or at most that of an apprentice, but certainly not that of a qualified solicitor; and, in any event,
(vii) that the conclusion reached, namely that Mr. Carroll was not a fit and proper person, was erroneous in point of law.
Request to Admit Additional Evidence
22. The appellant seeks to have admitted, as what he terms “additional evidence”, certain correspondence between a Ms. Baker and the Law Society. Whilst technically such correspondence does not meet the necessary threshold, nonetheless I have read what was submitted. Having done so I am entirely satisfied that such does not in any way advance the position of Mr. Carroll.
Statute Law/Regulations:
23. Before dealing with these grounds of appeal and the points raised in the submissions, it might be useful to set out the relevant statutory provisions and the underlying principles of law which informed the President’s decision and the conclusions reached by him.
24. Section 24 of the Solicitors Act 1954 (“the 1954 Act”), as substituted by s. 40 of the Solicitors (Amendment) Act 1994 (“the 1994 Act”), is headed “Requirements for admission as solicitor”. It reads:-
“24(1) Subject to this part of this Act, a person shall not be admitted as a solicitor unless—
(a) he has attained the age of 21 years,
(b) he has been bound by indentures of apprenticeship for the appropriate terms and has satisfied the Society that he has duly served under such indentures of apprenticeship, or has been exempted, as may prescribed, from being bound by or from service under such indentures of apprenticeship,
(c) he has duly attended such course or courses of education or training (or both) and passed such examination or examinations as may be prescribed, or has been exempted as may be prescribed from attending such course or courses or passing such examinations, or any of them, except those examinations that are obligatory for him,
(d) he has complied with the prescribed requirements (if any) as to service under indentures of apprenticeship and admission of persons to be solicitors or compliance therewith has been waived in the prescribed manner by the Society, and
(e) he has satisfied the Society that he is a fit and proper person to be admitted as a solicitor.”
Apparently it has long since been agreed between the parties that Mr. Carroll has fulfilled conditions (a) and (c) and, furthermore, it does not appear that the Society has any issue regarding conditions (b) and (d) ([2003] 1 I.R. 284 at 293, McGuinness J.). The sole but important issue therefore relates only to condition (e).
25. The Solicitors’ Acts 1954 to 1994 (Apprenticeship and Education) Regulations 1997 (S.I. 287/1997) (“the 1997 Regulations”) apply to a person who meets its definition of “an apprentice”. Under Regulation 25 an “apprentice” includes a person “… who has completed the term of his indentures of apprenticeship but who has not yet been admitted as a solicitor and … [also] a person who, pursuant to section 43 (as substituted by section 51 of the Act of 1994) of the [1954] Act, seeks to be admitted as a solicitor”.
26. That Regulation also confers the following competence on the Education Committee relative to such a person:-
“25 (a) …
(b)
(i) The Committee shall be entitled to receive and consider any complaint of alleged misconduct made against an apprentice.
(ii) If the Committee decides to enter upon a consideration of such complaint, the Committee shall, as soon as practicable, notify the apprentice concerned in writing of the nature of the complaint and shall furnish such apprentice (or any solicitor instructed by such apprentice) with an opportunity of responding to such complaint within a period of not less than seven days.
(iii) The Committee may, with due notice to such apprentice, conduct such hearing and hear such evidence as the Committee considers appropriate and reasonable, including evidence by or on behalf of such apprentice.
(iv) …
(c) If the Committee, after due consideration, finds a complaint of misconduct made against an apprentice to be well-founded, the Committee may adopt one or more of the following courses, namely:
(i) report in writing to the President of the High Court that such apprentice is not, in the opinion of the Committee, for reasons specified in such report, a fit and proper person to be admitted as a solicitor
(ii) …
(d) An apprentice aggrieved by a decision of the Committee made pursuant to clause (c) of this Regulation shall be entitled within twenty one days of notification to him of such decision, to apply, to the President of the High Court for review of such decision.
(e) …”
27. One should also note the terms of Regulation 26, which for present purposes has a provision similar to s. 24 of the 1954 Act as substituted by s. 40 of the 1994 Act. It reads:-
“26 (a) subject to the provisions of Part IV (as amended …) and of these Regulations, a person shall not be admitted as a solicitor unless:-
(i) …
(ii) …
(iii) … and
(iv) he has satisfied the Society that he is a fit and proper person to be admitted as a solicitor.”
Finally, whilst reference was also made to the predecessor of these Regulations, The Solicitors Acts, 1954 and 1960 (Apprenticeship and Education) Regulations 1991 (S.I. 9/1991) (“the 1991 Regulations”), these could not apply to the “Darley complaint” as the same was made only in 1999. It may be of interest to note that there was a difference in the wording of the earlier version of requirement (iv), which read “he has satisfied the Committee that he is a person of good character and is a fit and proper person to be admitted as a solicitor” (Regulation 27(iii) of the 1991 Regulations). However, nothing turns on this in the instant appeal.
Meaning of Misconduct:
28. The 1997 Regulations do not define “misconduct”. Accordingly, having regard to the provisions of Regulation 2(b) thereof, that word bears the meaning assigned to it by the provisions of the Solicitors Acts 1954 to 1994. At the relevant time that term was defined in s. 3 of the Solicitors (Amendment) Act 1960 (“the 1960 Act”), as amended by s. 24 of the 1994 Act, which provided for a description or definition of what conduct may be said to be “misconduct”. The table set out in s. 24 of the 1994 Act read as follows:-
“misconduct” includes—
(a) the commission of treason or a felony or a misdemeanour,
(b) the commission, outside the State, of a crime or an offence which would be a felony or a misdemeanour if committed in the State,
(c) the contravention of a provision of the Principal Act or this Act or the Solicitors (Amendment) Act 1994, or any order or regulation made thereunder,
(d) conduct tending to bring the solicitors’ profession into disrepute.”
29. The learned President, having pointed out that this definition is not exhaustive, took the view that in construing the word “misconduct” he should also have regard to the decisions at common law in relation to professions generally and solicitors in particular, and to that end he quoted extensively from the judgment of Keane J., as he then was, in O’Laoire v. The Medical Council (Unreported, High Court, 27th January, 1995) (“O’Laoire”). It seems reasonable to conclude from the judgment that the President proposed to apply the following four principles which were set out by Keane J., albeit in a slightly different form of wording:-
“1. Conduct which is ‘infamous’ or ‘disgraceful’ in a professional respect is ‘professional misconduct’ within the meaning of s. 46(1) of the Act.
2. Conduct which would not be ‘infamous’ or ‘disgraceful’ in any other person, if done by a professional in relation to his profession, that is with regard either to his clients or to his colleagues, may be considered as misconduct in a professional respect.
3. Misconduct is conduct in a professional respect which falls short of the standard expected of a professional by his professional brethren and which is serious. ‘Infamous’ or ‘disgraceful’ conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.
4. It is unnecessary that the conduct be either ‘infamous’ or ‘disgraceful’ in the sense of involving moral turpitude, fraud or dishonesty.”
In addition, Finnegan P., at the conclusion of his discussion on the applicable principles, added the further passage which appears at paragraph 57 of this judgment.
The Issues which Arise:
30. It is somewhat difficult to discern from the written submissions of Mr. Carroll what truly he is offering purely as background material, as distinct from his legal argument in support of the grounds of appeal. Although represented in July, 2006, he is not now, and is representing himself; however, as with all litigants, lay or otherwise, it must be noted that the appellate jurisdiction of this Court is not self-executing and that it requires the service of a Notice of Appeal to that end. Such a notice shall state “… the grounds of appeal and the relief sought or the order (if any) in lieu of the judgment or order appealed from sought by the appellant.” (O. 58, r. 4 RSC). Accordingly, in the absence of any amendment, this notice determines the issues which this Court is called upon to decide upon. It is thus a document of the first importance. Matters subsequently sought to be raised which cannot reasonably be regarded as coming within the terms of the Notice of Appeal will almost always be rejected. There are of course exceptions, which in the compelling interests of injustice will be entertained, but their exceptionality is closely scrutinised and tightly controlled. Therefore, the presumptive approach is and must remain that as stated.
31. The reason for this approach is not simply on the basis of fair procedures, for if that was the sole test, then, subject to the giving of notice and in the absence of any prejudice caused by the delay, virtually all points, whether pleaded or not, would be open for argument at appellate level. That is not the law for good reason: it would be utterly disruptive to the efficient administration of justice if it were otherwise and would greatly affect the process of certainty which a respondent is entitled to expect. Therefore, subject to a narrow and identifiable band of circumstances, it is not within this Court’s remit to consider matters extraneous to the terms of the Notice of Appeal.
32. On that basis, Mr Carroll’s allegations such as ‘Abuse of Process’, ‘Bias’, ‘Improper Motive in Pursuing the Complaint’, ‘Perjury before the Committee’ and several other matters, including ‘Oppression’ and ‘Malice’, cannot be entertained. Indeed, even if they could be, within the Notice of Appeal it is extremely difficult to see how any of those points could be factually asserted or legally sustained. Accordingly, even construing the submissions as favourably as possible, the issues which are addressed in this judgment are the only issues which appear to arise; but first, two matters of general application which should be dealt with.
How the Issue of a Fit and Proper Person Arises:
33. As appears from the general background above given, before Mr. Carroll could be admitted to the Roll of Solicitors he would have to be in due compliance with the Solicitors Acts and the appropriate Regulations made thereunder. One such requirement arises out of s. 24 of the 1954 Act, as substituted by s. 40 of the 1994 Act, and also out of a similar condition specified in Regulation 26 of the 1997 Regulations, both of which require that an apprentice must be a fit and proper person before joining the profession (paras. 23-27 supra).
34. To that end, Mr. Carroll asked the Law Society to forward his name to the President of the High Court for admission to the Roll. Faced with such a request, the Society was required to be satisfied that the qualifying conditions for such entry existed; evidently it was not satisfied, this as a result of the complaints initially made in 1993 but deferred, as to process, until the proceedings then in being were finalised (paras. 6-9 supra). Once concluded, the Society reactivated the investigation of the Education Committee so that the existing complaints, involving allegations of misconduct, could then be duly determined by it.
35. This was not therefore a disciplinary process as such. Rather the inquiry was as to whether the appellant was a fit and proper person to become a solicitor. His “character fitness” therefore had a direct and decisive bearing on his request to be admitted to the Roll. If the complaints were properly dismissed, the Society would no longer be justified in refusing Mr. Carroll’s application; if upheld and so confirmed at review level, and if the President viewed the findings as reflective of his unsuitability, then a statutory pre-condition for admission to the Roll would not have been met. Accordingly, a resolution of this matter, one way or the other, was essential. Unfortunately, however, as the narrative shows, the 1996 proceedings (para. 10 supra) were commenced almost immediately after the Committee convened in May of that year to deal with the complaints, with the result that it was not until late 1999 that matters at inquiry level moved at any substantive pace. The passage of time at all phases of the process is to be regretted.
The Process:
36. As the Regulations indicate, it is the Education Committee of the Law Society which is the body responsible for receiving complaints made against a person who by statutory definition is an “apprentice” solicitor; it is also clearly the forum in which such complaints are inquired into. Its procedures in this respect involve the hearing of oral evidence, the consideration of any admissible documentary evidence, and the granting to each party of an opportunity of testing such evidence and of making such submissions on both the facts and the law as the Committee might consider appropriate. At the end of that part of the process, if it concludes that the complaints, or any one or more of them, have been established, then Regulation 25 of the 1997 Regulations gives it a number of options as to what follow-on course it might adopt. One such possibility is to make a report to the President of the High Court indicating that, for the reasons outlined therein, the subject person is not, in its opinion, a fit and proper person to be admitted as a solicitor. At that point, an aggrieved party may as a matter of right move the said President to “review” all aspects of the antecedent process and decision: this is done, subject to any modification agreed by the parties, by way of an entire rehearing, with the President independently coming to his own conclusion on the findings appealed from, and also on what is the appropriate sanction, if any, to apply.
37. This is very much what occurred in this instance, with the only point of note being the Committee’s decision that it did not have the power to administer the oath or to compel the attendances of witnesses, the latter of which is not relevant. It therefore conducted its inquiry without the evidence being sworn. This procedure was fully discussed with those involved and it quite clear from the transcript that each party fully concurred in the resulting process. While some discussion was had in the middle of the inquiry about receiving evidence by way of affidavit, this was firmly rejected by the Committee. Of course the situation in this regard was entirely different in the High Court, where all of the witnesses who gave evidence were sworn. When the combined proceedings are looked at, in both specific and general terms, I am quite satisfied as to the overall fairness of the entire process.
38. The only other possible issue relates to Mr. Ryan, who, as part of the ongoing saga, also instituted judicial review proceedings against the Law Society, in respect of which Herbert J. gave judgment in late 2002. Following its delivery a compromise was reached between Mr. Ryan and the Society in relation to all outstanding matters. The terms of that settlement were recorded in counsel’s note dated the 29th November, 2002, and provided, firstly, that Mr. Ryan would furnish to the Law Society all due assistance in its ongoing dealings with Mr. Carroll when requested, and, secondly, that even if he was personally brought before the Compensation Fund Committee or the Disciplinary Tribunal, the Society would not seek or request the imposition of any sanction or penalty which would prevent him from practising as a solicitor.
39. Because the disciplinary proceedings taken by the Society against Mr. Ryan and his judicial review challenge were ongoing in 1999/2000, Mr. Ryan did not give evidence before the Education Committee, but following the compromise referred to he was available and did, in fact, pursuant to the terms of that compromise, give evidence before the President. These facts are referred to by Mr. Carroll, as indeed are many other circumstances involving Mr. Ryan, but to what effect is difficult to decipher. It is, I think, to highlight what he describes as the Law Society’s inequality of treatment as between them both. Even if correct in a technical sense, no consequential issue of a legal nature arises therefrom in the instant appeal. Furthermore, as this witness gave no evidence on Complaint No. 13, the situation with Mr. Ryan can have no impact on this appeal.
Hay v. O’Grady:
40. From the President’s decision the appellant has exercised his then right, under Article 34.4.3° of the Constitution, to appeal to this Court. It is trite but perhaps important to restate that the scope of such an appeal is not only confined to a question of law but is also circumscribed by various rules, such as those set out in Hay v. O’Grady [1992] 1 I.R. 210, in Henderson v. Henderson (1843) 3 Hare 100, and those which demand that any point of law raised should have been advanced, argued and determined at first instance (Rotunda Hospital v. Information Commissioner [2013] 1 I.R. 1). These principles mean, firstly, that one’s entire case must be agitated on the same occasion (Henderson v. Henderson) and, secondly, that it is a matter for the tribunal of fact to hear and consider the evidence, to determine the accuracy and reliability of that evidence and to assess the credibility of the respective witnesses. The decision in Hay v. O’Grady, which has a direct application to the instant appeal, and many other authorities to the same effect, means that, if supported by the evidence, findings of primary fact will not be revisited by this Court and neither will the Court readily substitute its own inferences for those of the trial judge, particularly where these have been derived from such facts or from oral type evidence. These are standard principles which apply to every appeal moved before this Court.
41. The Court has been referred to a number of authorities which are associated with the principles above outlined, including Doyle v. Banville [2012] IESC 25 and Schuit v. Mylotte [2010] IESC 56. The Doyle decision does not add anything of substance to Hay v. O’Grady and, for the reasons I am about to explain, neither does Schuit v. Mylotte. The point raised in that appeal was whether or not the trial judge’s decision to dismiss the plaintiff’s claim against the third and fourth named defendants, which he did at or shortly after the close of the plaintiff’s case, was correct. It was suggested that this decision was governed by the principles in Hay v. O’Grady and that, accordingly, if there was any evidence upon which the trial judge could have come to the conclusion which he did, that decision should not be disturbed on appeal.
42. In giving the Court’s judgment, O’Donnell J. pointed to the subtle but important difference between the test in Hay v. O’Grady and the test facing the trial judge on that application, which is that as set out in cases such as Hetherington v. Ultra Tyre Service [1993] 2 I.R. 535 and O’Toole v. Heavey [1993] 2 I.R. 544. The learned judge at p. 41 of the judgment said:-
“The test in Hay v. O’Grady is derived from the fact that an appeal Court which does not hear the evidence must give considerable deference to a trial Court’s assessment of the cogency and credibility of evidence given to it. This follows from the different functions of a trial Court and the appeal Court. As a result, the question for a court on appeal is essentially a matter of logic: was there evidence, whatever its apparent credibility or cogency, upon which the trial judge could come to the conclusion he or she did. The test in Hetherington v. Ultra Tyre Service and O’Toole v. Heavey provides in truth little scope for the application of the principle in Hay v. O’Grady since it is rare that a court will proceed to assess the credibility of witnesses at the end of the plaintiff’s case. While I do not rule out the possibility that a Court could come to the conclusion that the plaintiff’s evidence was so wholly incredible that there was no plausible or viable case, in most cases the issue is simply a matter of logic: is there evidence, whatever its relevant cogency or strength, upon which a court could conclude that a defendant was liable. That exercise is very similar to that set out in Hay v. O’Grady. It does not normally, and did not here, involve the type of assessment of the cogency or credibility which attracts the rule in Hay v. O’Grady, and accordingly the decision is fully reviewable on appeal.” (Emphasis in original)
Quite evidently, the decision in Schuit is therefore not applicable to this appeal, which must be governed by the principles now authoritatively established and first articulated in rule form by McCarthy J. in Hay v. O’Grady.
43. The practical effect of this, for the instant appeal, relates to the evidence given on the Darley complaint and to the findings made thereon by the trial judge. In the appellant’s written submissions he has spent a considerable amount of time urging this Court to prefer aspects of his evidence, such as, for example, that Ms. Darley saw the settlement cheque or was otherwise aware of it, that the overcharging related to work done by him on her brother’s behalf which had not been paid for, and that on receipt of such payment Mr. Carroll intended to credit Ms. Darley’s account with the amount previously deducted. In addition, he argues that having regard to the obvious inconsistencies in the evidence given by her before the President, on the one hand, and in the Circuit Court, on the other, this Court should take a contrary view from that of the trial judge and accept the explanations offered by the appellant for this entire incident. This submission is one which I cannot accept.
44. I am perfectly satisfied, firstly, that there was sufficient evidence of a credible nature before the President upon which he could make the findings which he did, and, secondly, that there is no substance in the argument that the degree of weight which he respectively attached to the evidence of Mr. Carroll and Ms. Darley was materially flawed. Accordingly, I cannot see any basis for interfering in any way with either the findings of fact made or the inferences drawn, as it was perfectly within the trial judge’s remit to prefer one version over the other in the event of having to choose between two conflicting versions, if such existed. Consequently, several grounds of appeal which are based on or which relate to this type of submission cannot be sustained.
Reasons:
45. Complaint is made that there is a deficit in the judgment under review to the effect that the President failed to give sufficient reasons for upholding the Darley complaint. I cannot agree that this is so. Having set out in extenso the evidence given by each witness, including Ms. Darley and Mr. Carroll, the judge, when dealing with Complaint No. 13, said on a number occasions that he was accepting the evidence of the complainant in several key aspects and was rejecting that of the appellant. This can only mean that where such was in issue the President was not accepting what was offered by Mr. Carroll; he was thus preferring Ms. Darley’s evidence and her version of events above that of the appellant and his version. Given that the evidence favoured was not simply documentary but was to a significant extent also based on oral testimony, the President, having assessed the accuracy of recall, reliability and credibility of all witnesses, was justified in so doing. Accordingly, this ground of appeal must be dismissed.
The Civil Action:
46. Mr. Carroll also makes an argument to the effect that what he called his “Article 6 rights” were interfered with, in that the Darley complaint had been addressed in the Circuit Court; accordingly, in the absence of judicial error, which is not suggested to have occurred, the principle of legal certainty prevents that issue, once finally determined, from being called into question again. He cited several cases such as McCauley v. McDermott [1997] 2 I.L.R.M. 486; Bula (in receivership) v. Crowley (Unreported, High Court, Barr J., 29th April, 1997; [1997] IEHC 72) and O’Malley v. Irish Nationwide Building Society (Unreported, High Court, Costello J., 21st January, 1994), as well as quoting paras. 114-116 of a document entitled “Practical Guide to Article 6 - Civil Limb”, which displays the notation “Council of Europe/European Court of Human Rights, 2013”.
47. This submission is based on a misunderstanding of the relationship between the determination of a civil matter and the role of a regulatory body where the underlying facts are also relevant to the practice of one’s profession. Where such facts may constitute a case of misconduct, or even an infringement of lesser gravity, being one which nonetheless directly impacts on a person’s professional suitability, then the regulator has a vital interest to inquire into such matters. In so doing the purpose of the process is not to mount a collateral attack or otherwise seek to undermine an existing decision, which the general rule referred to by Mr. Carroll seeks to avoid. Rather it is to protect the public and preserve its confidence in the integrity of the profession. Evidently this also applies to the character fitness of an intended entrant into that profession.
48. Closely akin to the interaction between a civil action and the type of inquiry/review conducted in the instant case is the situation where an employee is alleged to have committed some act which, if established, may not only constitute a breach of the criminal law, but also a breach of his contract of employment. A more direct parallel perhaps is where a solicitor may have embezzled money, which evidently constitutes a criminal offence, but which also seriously affects his suitability to continue practising as a solicitor. In either or both of those circumstances, of which there are many other examples, there is very well established jurisprudence to the effect that a determination on the criminal side will not prevent the employer or a disciplinary body from also conducting its own inquiries within its contractual remit or regulatory control, as the case may be; this may be permissible even where the criminal proceedings resulted in an acquittal, but always subject to fair process, fair procedures and constitutional protection (see, for example, the comments of Finlay C.J. in McGrath v. Commissioner of An Garda Síochána [1991] 1 I.R. 69 at p.71; the comments of Geoghegan J. Garvey v. Minister for Justice [2006] 1 IR 548 at p. 556; and O’Malley, The Criminal Process, 1st Ed. (Dublin, 2009) at paras. 4-75 to 4-77). Given that such practice is permissible, it must equally, if not with even more conviction, apply where the judicial proceedings are only civil in nature. This may occur where, for example, instead of or in addition to being charged with, say, embezzlement, a solicitor who has misappropriated funds is also sued in the civil courts by that client for the recovery of the stolen monies. Quite evidently the initiation of one set of proceedings could not affect either the Director of Public Prosecutions’ right to prosecute, or the client’s right to seek a civil judgment. Moreover, in such circumstances it seems difficult to see how by reason only of such proceedings being brought to finality, the Law Society could not itself inquire into the conduct alleged. Therefore, I cannot see how this submission of Mr. Carroll can be sustained.
Miscellaneous Point:
49. The appellant complains about what he describes as the inconsistent position adopted by the Law Society in 1993 when compared with that insisted upon in 1999. At the earlier time it took the view that the activation of the complaints process should be deferred until the 1993 proceedings were determined, whereas in 1999 it insisted upon the Education Committee commencing and thereafter proceeding with the investigation. In my view there is nothing of substance to this point and, in any event, no legal basis has been established by which the point could be advanced. It must therefore be rejected.
The Appropriate Standard:
50. There is, in reality, only one point of substance in this appeal, which is whether the learned President applied the correct legal test in addressing the question of law which he faced, namely whether the appellant was a fit and proper person so as to satisfy the requirements of s. 24(1)(e) of the 1954 Act, as substituted by s. 40 of the 1994 Act, and Regulation 26(a)(iv) of the 1997 Regulations.
51. There seems to be no dispute but that in conjunction with a statutory definition (if any), a court should apply the principles of law outlined in O’Laoire when adjudicating generally upon an allegation of misconduct in respect of a member of certain professions. One such profession is that of a solicitor. In this regard it is accepted that the learned trial judge correctly set out the relevant principles. Where the point of departure seems to arise is whether, in a passage of his judgment later referred to (para. 57 infra), the President was correct when stating “as with a solicitor so too with an apprentice”. The appellant argues that it is legally erroneous to regard him effectively as a qualified solicitor at the relevant time; rather, he looks for a lesser standard, one more appropriate to his actual occupation at the time, be it that of an accident claims operative or of an apprentice solicitor. This is where the real contest is positioned on this appeal.
52. In this respect it is quite instructive to see how the President judged the misconduct issue on the Darley complaint as distinct from how he dealt with the same issue in respect of Complaint No. 3.
53. There were two aspects to Complaint No. 3. The first was an allegation that Mr. Carroll disguised the origin of the fees coming into the Rialto office, and the second was that he likewise disguised their destination. He was cleared of the origin aspect of the complaint, but the destination aspect was upheld. The critical question then was whether such circumstances amounted to misconduct. In the President’s view they did not, essentially because:-
54. Accordingly, although the appellant had concerns about the practice, it would be to impose an excessively high standard, in the absence of fraud or dishonesty, to demand that he should direct his Master on the latter’s obligations under the Accounts Regulations. Consequently, as can be seen, the President’s refusal to return a finding of misconduct on the established facts was largely based on Mr. Carroll’s role as an apprentice, who in that capacity should not be treated as a qualified solicitor. Evidently, therefore, a somewhat lower standard was applied than what clearly would have been appropriate if he had been a solicitor.
55. The essence of the Darley complaint, and of the findings made by the both the Education Committee and the High Court on review, was different: it related not simply to an inadvertent or mistaken overcharge, but to such an event carried out with deliberation, hidden by concealment and facilitated by untrue representations. An element of fraud undoubtedly existed, as did an element of dishonesty. As such, one could not possibly disagree with the view of the President, who considered the conduct to be “of the utmost seriousness”.
56. In coming to the conclusion that the appellant was not a fit and proper person, by reason of the misconduct arising out of Complaint No. 13, the President made some allowance for the fact that he was an apprentice, albeit one with considerable experience and one of personal maturity. He also referred to the appellant’s role as an accident claims operative, but took the view that no lesser standard should apply to such a person than would be expected of a solicitor. In his dealings with Ms. Darley, the appellant fell very short of that standard. Hence, the conclusion reached.
57. The basis upon which these matters were taken into account can be seen from the following passage of the judgment:-
“As with a solicitor, so too with an apprentice. In considering these standards in relation to a solicitor’s apprentice rather than a solicitor, I consider it appropriate that account should be had of the particular relationship between master and apprentice and in particular to circumstances such as where the conduct complained of was directed, colluded in or condoned by the master. Regard should be had to apprentice’s age, maturity and the stage to which his legal education has progressed. However, such matters will be of little relevance or weight where the offence is one of dishonesty.”
58. In O’Laoire, and in all the decisions cited by Keane J. in that case, the issue of misconduct was always discussed in the context of the subject person being qualified and, on the solicitor’s side, admitted to the Roll. The legal principles applying to such a person are as above set forth and are not in controversy. If any legal dispute should arise it is virtually always on their application to the particular facts of a given case, but as principles of law they are very well established and not in issue.
59. Rather surprisingly, perhaps, we have not been referred to a single case concerning an apprentice who was seeking admission to the Roll. As previously outlined, what the Court is strictly looking at in that situation is the statutory requirement as to fitness and properness, and not directly at misconduct; the latter, of course, in the circumstances of this case, is critical, as the Law Society’s position is firmly anchored on the misconduct findings, which in its view clearly demonstrated that the appellant is not a fit and proper person for admission.
60. This phrase or requirement has however arisen for consideration in a related - though by no means identical - situation where a solicitor was seeking to have his name restored to the Roll, having previously been removed. This type of application was first provided for by s. 10 of the 1960 Act, which, without more, simply gave the High Court power to so restore a name to the Roll. Strikingly, however, that changed when the following subsection was added by s. 19 of the 1994 Act. Subsection (4) in its present form reads as follows:-
“(4) Where, on the hearing of an application under this section, it is shown that the circumstances which gave rise to the striking off the roll of the applicant's name involved an act or acts of dishonesty on the part of the applicant arising from his former practice as a solicitor or that the applicant was convicted of a criminal offence, the High Court shall not restore the applicant's name to the roll, either conditionally or unconditionally, unless it is satisfied that, having regard to all the evidence, the applicant is a fit and proper person to practise as a solicitor and that the restoration of the applicant to the roll would not adversely affect public confidence in the solicitors' profession as a whole or in the administration of justice.”
It is thus apparent that in the legislature’s view there should be no reinstatement unless both of these statutory requirements are met. It is of particular significance to note the reference to the public at large and the administration of justice in general.
61. In 1991 the name of Mr. Frank Burke was removed from the Roll for, inter alia, acts of dishonesty. His application for a limited practising certificate, or, as s. 10(4) of the 1960 Act states, a conditional restoration, came before the High Court in October, 1999 (In the matter of Frank Burke and Lorna Burke Carrying on Practice under the Style of Frank Burke & Company [1999] IEHC 257). Morris P., whilst satisfied that neither public confidence nor the administration of justice would be adversely affected by a restoration, nonetheless took a contrary view on the character requirement, holding that as it would be unsafe for Mr. Burke to be in control of clients’ funds, he could not be described thereby as a fit and proper person to re-enter the profession. There was no distinction in the judge’s view between a partial or a full restoration in this respect. The resulting appeal was unanimously dismissed (In re Burke [2001] 4 IR 445).
62. In his judgment for this Court, Keane C.J. said the following:-
“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 inevitably must 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 subs. (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 … 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 subs. (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.”
Being satisfied that Mr. Burke’s previous conduct could not be described as either an isolated act or one capable of explanation, the Chief Justice concluded that the decision of the High Court could not be disturbed.
63. It is of course immediately clear that the situation of Mr. Carroll is different from that of Mr. Burke. A person who seeks readmission has history in that he or she has previously been struck off. He has therefore exhibited established form which rendered him unsuitable for his profession. Moreover, the Court has not been referred to any statutory provision comparable to s. 10(4) of the 1960 Act by which an aggrieved apprentice, once having been refused admission, could re-apply on some subsequent occasion. These considerations do not therefore apply to the instant case. Nonetheless, whilst acknowledging that the value of Burke is at a general level, it is the case that the subsection in question uses the same phraseology, on the character issue, as a condition for restoration as is used to cover one’s initial entry to the Roll. In that way, therefore, but subject to the observations as made, some assistance may be obtained from that case.
64. What Burke clearly demonstrates is the enormity of the task facing any person who has been struck off and who attempts to re-enter the profession. Whilst the situation may be somewhat less daunting for a non-qualified person who has an unfitness finding standing against him, nonetheless it remains hugely problematic for the intended entrant to see if and how that could ever be overcome. This, for someone like Mr. Carroll, is an extremely serious matter as, despite having successfully sat all prescribed examinations and having completed his apprenticeship, he is prevented, by statutory prohibition, from pursuing his career of choice. Accordingly, it was entirely appropriate for the President in the instant case to rigorously scrutinise the findings made by the Education Committee and, when determining the misconduct allegation, to apply the criminal standard of proof.
Fit and Proper:
65. The phrase “fit and proper” combines two broad elements, fitness and properness. Both, whilst complimentary, are intended to convey different requirements and to cover different aspects of a person’s overall suitability for the solicitors’ profession.
66. In broad terms, ‘fitness’, which covers the necessary academic qualifications and practical experience, also relates to matters such as knowledge, skill, understanding, expertise, competence and the like, all of which impact on one’s capacity to appropriately discharge the obligations which the practice of his profession imposes. The second aspect of the term ‘being a proper person’ is much more directly related to character and suitability. Critical in this respect are matters such as honesty, integrity and trustworthiness: a person of principled standards, of honest nature and of ethical disposition; a person who understands, appreciates and takes seriously his responsibilities to the public, to the administration of justice, to individual colleagues and to the profession as a whole.
67. It is neither possible nor desirable to try and outline the acts, omissions and conduct by which such a standard should be judged: these range on the vertical scale from the trivial, negligible and inconsequential to the grave, appalling and deplorable. On many occasions the Regulatory Body, and on review the court, will have little difficulty in appropriately positioning the conduct established. On other occasions, however, a fine line and narrow call may have to be made; when that difficulty occurs the decision will be a matter of degree. Whichever may be the situation, each case will be circumstance specific, and must be individually assessed at all levels of the adjudicative process.
68. In a judgment quoted by the President in the instant case, Bolton v. Law Society [1994] 2 All ER 486, Bingham M.R. analysed some aspects of the range of conduct which might call for regulatory intervention in respect of a solicitor. Every solicitor and all intending solicitors should take time to engage with it. Whilst some of what is stated is echoed in Burke, what emerge from the overall decision are the unforgiving consequences which would most likely follow from any proven misconduct, save that at the lowest level of the scale.
69. The learned Master of the Rolls identified proven dishonesty, whether attended by a criminal conviction or not, as the most serious such conduct. Where established, “no matter how strong the mitigation” is, a strike off will almost invariably follow. Furthermore, even where the solicitor in question has, over the following several years, made every effort to rehabilitate himself, and has even done so honourably and in a position of trust and responsibility, a restoration to the Roll will be very rare indeed. He described why this approach, which may seem harsh, was necessary: it was to maintain the reputation of the solicitors’ profession in general, and to sustain unreserved public confidence in its integrity.
70. There can be little doubt about the general correctness of these and the other remarks made by Bingham M.R. in Bolton. There is therefore placed on the regulatory body, at first instance, a high level of public responsibility to this end. Equally so, however, there is a corresponding obligation on that body to be ever so discerning in its evaluation of the facts and in the findings arrived at. In all cases the sanction imposed, if any, must be proportionate as determined by the principles of Irish law, which, perhaps unlike in England, contain a constitutional dimension. This is because any sanction akin to a disqualification or a suspension will impact upon one’s declared but qualified right to practice his or her profession. Therefore the strictness of the presumptive approach, as evident in Bolton, may not be altogether appropriate in this jurisdiction. Consequently, until the issue directly arises, I would prefer to offer no definitive opinion on the circumstances, limited as they may be, in which an individual who has been struck off could properly be readmitted to the Roll.
Summary of Principles:
71. From the aforegoing it appears:-
(i) That for admission to the Roll, an apprentice must be a fit and proper person to enter the profession;
(ii) That such fitness and properness of character, if called into question, must of necessity be established prior to admission;
(iii) That the phrase ‘fit and proper’, although composed of two words which appear synonymous with one another, and with associated concepts such as ‘suitability’ and ‘appropriateness’, contains two elements which, whilst related, are distinct components; it cannot be the case the legislature or the Law Society, in enacting s. 24 of the 1954 Act (as substituted by s. 40 of the 1994 Act) and Regulation 26(a)(iv) of the 1997 Regulations, respectively, intended either word to be redundant or devoid of meaning. It seems to me that fitness essentially relates to academic/professional qualifications, knowledge, skills, experience, and the like, whereas properness is concentrated on human attributes, honesty, integrity, probity, trustworthiness etc., as well as issues such as prior criminal convictions or unlawful conduct. These considerations are not intended to be exhaustive in respect of either category, but provide an illustration of the factors arising in respect of each element of the test. Only after this individual analysis does the phrase merge into the overall issue of character suitability;
(iv) That such requirements do not stand only at the entry door; their presence and application continues throughout the entirety of one’s professional life;
(v) That to practice in this profession one does not have to possess extraordinary talent and/or intellect - the vast majority, like all other professions, are not so gifted - nor is it required. Competence and application at a reasonable level are most adequate to fulfil virtually all functions for most clients. Expertise at a higher level is also readily available. However, as with one, as with all: compliance with professional standards is essential, for without this, individual solicitors, firms of whatever size and the profession as a whole will be damaged and irreparably impaired. Such would impact greatly on an essential service which society as a whole depends on;
(vi) That one common strand permeates all levels of the profession: it is trust, integrity, probity and, in a nutshell, honesty; violations of these principles will differ as to degree and seriousness, as will the sanction imposed in response;
(vii) That substandard behaviour not reaching the misconduct level, such as moments of neglect or carelessness, can be differentiated from that which does. The former can attract a range of sanction options, up to and including suspension and conditionality of further practice. The latter, when established, may well involve a consideration of dismissal from the profession. Where proven dishonesty is involved, with or without the oft associated features of misrepresentation, concealment and deceit, such misconduct will almost always feature at the highest level of the scale which I have referred to: therefore, in such circumstances, the sanction of dismissal will be a front line consideration;
(viii) O’Laoire and so many other cases show how established misconduct of a serious nature is regarded both by the professional body and by the courts: despite the personal devastation which a strike off may have for most 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;
(x) Once removed from the Roll, the likelihood of a name restoration is not encouraging. Whether the rigidity of the Bolton decision is appropriate in this constitutional jurisdiction is an issue that does not have to be resolved and is one on which I will defer from offering any view for the moment;
(xi) The analogous situation of an apprentice who seeks admission having previously failed to meet the ‘fit and proper person’ test likewise does not arise. I therefore have given no consideration to what principles might apply to any such application, in particular whether and to what extent either Burke or Bolton govern the situation;
(xii) The reasons for demanding such an exacting standard start with the nature of the profession and the service it provides: the right to represent any member of the public in any area of his or her expertise and the right to appear in that capacity in every court established by law and under the Constitution. Such involves the deepest level of personal and mutual trust as between the solicitor and client;
(xiii) Not infrequently one’s liberty, one’s wellbeing and one’s assets, even one’s future, are unconditionally entrusted to a solicitor: there are notorious examples which demonstrate that neither the civil law nor the prospect of criminal sanctions, even with the personal and public shame attached, have been sufficient to deter the occasional but nonetheless most serious form of malpractice. Therefore regulatory control and enforcement of the standards, under direct judicial supervision, to the level demanded, is fully justified.
Deduction:
72. In any event, whilst this discussion is both instructive and informative, it does not directly determine the standard by which the character requirement in s. 24 of the 1954 Act, as substituted by s. 40 of the 1990 Act, and in Regulation 26 of the 1997 Regulations, should be measured. It does, however, very decisively illuminate how that issue should be resolved.
73. The context in which the misconduct allegations came to be investigated cannot be lost sight of. The appellant’s intended career was that of a solicitor. He requested the Law Society to permit his admission to the Roll. It was thus obligatory on him to satisfy the Society that he was a fit and proper person to enter that profession. If admitted, the requirements, inter alia, as to character above set out would immediately apply. Surely in such circumstances the standards of honesty and truthfulness expected and demanded on qualification would also have to apply to an intended candidate. Why, or on what basis, should a lesser threshold apply? In fact, how could it as a matter of principle? What would be the purpose in setting a lesser threshold? It would be so that if Mr. Carroll is correct, he could join the profession, but how could that be compatible with the professional standards as demanded, in particular where that common thread of honesty has no boundary and can never be stood down? It would result in the entirely anomalous situation that such a person would be admitted, whereas if judged by the standards demanded of a solicitor, he would be dismissed from that profession. That could not be correct. In principle, therefore, I believe that the President, in the context of Complaint No. 13, was fully justified in applying the same standards to Mr. Carroll as he would have if the appellant had been qualified at the relevant time.
74. The above considerations should be taken as applying solely to the probity, honesty and trustworthiness of an apprentice solicitor; to that end, an apprentice is judged to the same standard as a qualified solicitor but only in respect of the “properness” aspect of the fit and proper person test, within the meaning which I have ascribed to that concept (paras. 66 and 71(iii) supra). Quite evidently an apprentice or trainee could not be expected to possess the same knowledge, experience, qualifications and skill set as a qualified solicitor; accordingly, in the absence of dishonesty, as generally understood, an act of incompetence, neglect, oversight or even simple mistake on behalf of an apprentice, particularly an apprentice at the beginning of the apprenticeship, should naturally and fairly be viewed less seriously than a similar act or omission committed by a qualified solicitor. That stems from the very nature of an apprenticeship. Although the apprentice must be “fit” (in the meaning above described) to be a solicitor by the date of their admission to the Roll, that requirement cannot be backdated in the same way that “properness” can. For these reasons I would also agree with the differentiation applied in respect of Complaint No. 3 and with the President’s finding on that complaint. Finally, I should make clear that these observations are made within the context of the process under discussion and are not intended as being applicable to different circumstances such as a claim in contract or in negligence.
End Result:
75. In accordance with the findings of the review conducted by the President of the High Court, the Darley complaint, involving as it did elements of dishonesty, must be viewed in the most serious way. Overcharging, if that is even a correct description of what was involved, attendant with an element of concealment, misrepresentation, and dishonesty, may undoubtedly amount to misconduct. In fact, it is not suggested by the appellant that this is not so. His entire argument on this aspect of his case is based on the submission that a lesser standard should apply to him. I cannot agree with this proposition. Accordingly, I am satisfied that there is no basis for disturbing the conclusion reached by the learned President and the resulting declaration made by him, namely that by reason thereof Mr. Carroll was not a fit and proper person to join the profession.
76. As unfortunate as this may be for the appellant, it was his choice to enter a profession where such standards, for the reasons given, must be adhered to.
77. For the above reasons, I would dismiss this appeal.
