Carroll v Law Society of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IESC 49
• Court: Supreme Court
• Docket Number: [268/2006],[S.C. No. 268 of 2006]
• Date: 28 July 2016

McKechnie J.

MacMenamin J.

O'Malley J.

BETWEEN

EAMONN CARROLL

APPELLANT/APPLICANT

AND

LAW SOCIETY OF IRELAND

RESPONDENT/RESPONDENT

[2016] IESC 49

McKechnie J.

[268/2006]

THE SUPREME COURT

Roll of Solicitors – Misconduct – Legal profession – Appellant seeking admission to the Roll of Solicitors – Whether judge applied an incorrect legal test in assessing whether the appellant was a fit and proper person to be admitted to the solicitors? profession

Facts: The appellant, Mr Carroll, sought to be admitted to the Roll of Solicitors. On the 28th February, 2005, the then President of the High Court, Finnegan P, 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. The appellant appealed to the Supreme Court from that order made by Finnegan P. The essence of Mr Carroll?s case was 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 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.

Held by McKechnie J that, having considered the circumstances of the case, where a finding of misconduct related to an act of dishonesty in Mr Carroll?s dealings with a client with associated concealment and misrepresentation, he was satisfied that the judge applied the correct standard. McKechnie J held that 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. McKechnie J, in accordance with the findings of the review conducted by the President of the High Court, held that the complaint, involving as it did elements of dishonesty, must be viewed in the most serious way. McKechnie J noted that the appellant?s entire argument on this aspect of his case was based on the submission that a lesser standard should apply to him. McKechnie J, having considered Hay v O?Grady [1992] 1 IR 210, could not agree with this proposition. Accordingly, he was satisfied that there was no basis for disturbing the conclusion reached by the 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; as unfortunate as this was for the appellant, it was his choice to enter a profession where such standards must be adhered to.

McKechnie J held that he would dismiss the appeal.

Appeal dismissed.

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] A.C. 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...