Law Society of Ireland -v- Malocco, [2005] IESC 5 (2005)

Docket Number:339/03
Party Name:Law Society of Ireland, Malocco
Judge:Kearns J.
 
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Murray CJ.

Geoghegan J.

Kearns J.THE SUPREME COURT[Record No. 339/2003SC]

IN THE MATTER OF ELIO MALOCCO AND IN THE MATTER OF THE SOLICITORS ACTS, 1954 - 1994

BETWEEN

THE LAW SOCIETY OF IRELAND APPLICANT/ RESPONDENTAND

ELIO MALOCCO RESPONDENT/ APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 15th day of February, 2005

Background

The appellant is a solicitor who was enrolled in 1977 and who thereafter practised under the style "Malocco and Killeen" in partnership with Conor Killeen in Dublin.

In September, 1991, the Law Society, the respondent herein (and hereinafter referred to as "the Society") received a complaint about the firm from Irish Press Newspapers who were, or had been, clients of the practice. At a meeting of the Compensation Fund Committee of the Society on the 26th September, 1991, a decision was made to refer the matter to the Disciplinary Committee of the Society. Mr. Tim Bolger, chartered accountant, was employed by the Society to investigate the said firm.

A special meeting of the Compensation Fund Committee of the Society took place on the 27th September, 1991. It directed that an application for a freezing order pursuant to s.20(1)(a) of the Solicitors (Amendment) Act, 1960, be made to the High Court.

The relevant portions of s.20 are as follows: -"(1) Where the Society are of the opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may apply to the High Court, and the High Court may make an order directing either-(a) That no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or

(b) That a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm. (3) Where the High Court make in relation to a solicitor an order under subsection (1) of this section, the High Court may at the same time order that his practising certificate be suspended until the certificate expires."

On 30th September, 1991, the High Court (Denham J.) made orders under s.20 ss.(1)(a) and (3), directing the freezing of payments out of any bank account of the two solicitors or their firm and also suspending the practising certificates of both solicitors. Other orders were made and undertakings given by the two solicitors in respect of the production of documents and books of accounts of the partnership.

On the 7th October, 1991, the High Court (Costello J.) by consent varied the order of the 30th September, 1991, to provide that no banking company should without leave of the High Court make any payment out of a banking account in the name of the solicitors or in the name of their firm, or in the name of either solicitor with any other person, firm or company.

A third order of the High Court (Flood J.) was made on the 15th October, 1991, in proceedings entitled The High Court (1991 No. 12910P). By that order, Flood J. received a consent from the same parties to be filed with and deemed to be part of the court's order. Under the terms of the consent thus made a rule of court, Mr. Malocco consented, inter alia, to an order restraining him from giving any instructions in respect of the withdrawal of funds held in certain bank accounts in Spain. He also submitted to a variety of other orders restraining him from entering the offices of the firm or communicating with any member of the staff of the firm or giving any directions to such members.

All of these orders are still extant and are the subject matter of the appellants' first motion herein which was ruled upon by the High Court (Finnegan P.) on the 31st July, 2003, and which now comes before this court on appeal.

In late September or early October 1991, the appellant fled the jurisdiction and did not return to Ireland until 1993. A criminal investigation of the appellant had commenced which resulted in a prosecution and trial following his return in that year. The trial resulted in the appellant's conviction on the 28th March, 1993, on six counts in respect of charges relating to dishonesty in relation to his practice as a solicitor.

Thereafter, the appellant brought an appeal to the Court of Criminal Appeal in respect of the five-year sentence of imprisonment which had been imposed upon him following his conviction in the Circuit Court.

On the 18th August, 1993, the applicant's solicitor, Mr. Peter Dempsey, wrote a letter to the Law Society in which he sought the Society's confirmation that the initiation of disciplinary proceedings against the appellant should not take place "pending the outcome of the criminal proceedings."

On the 23rd May, 1996, the Court of Criminal Appeal rejected the appellant's appeal following which the appellant remained in custody until March/April, 1998. At no point up to the time of his release did the appellant seek to vary or discharge any of the three orders of the High Court made in September and October, 1991, nor did the appellant seek to withdraw or resile in any way from his demand that the Society stay its hand pending the conclusion of the criminal proceedings. In particular he did not seek that the Society proceed with its investigation, as distinct from any hearing, during this period. This was a contention which the appellant advanced in this appeal as a possibility which the Society might have considered.

On 12th March, 1998, the affidavit grounding an application to the Disciplinary Tribunal was sworn. The Society had no address for service of the disciplinary proceedings on the appellant and obtained an order for substituted service of same from the President of the High Court on the 2nd July, 1998. This order was made following a number of adjournments to ensure compliance with the requirements of the court. The appellant shortly thereafter confirmed receipt of the said proceedings.

On the 22nd October, 1998, the Disciplinary Tribunal determined that the Society's application disclosed a prima facie case.

On the 4th February, 1999, the inquiry before the Disciplinary Tribunal commenced and hearings thereafter took place on the 2nd March, 1991, the 20th and 21st April, 1999, 26th and 27th April, 1999, 20th May, 1999, 9th June, 1999, and 1st December, 1999. It made findings of misconduct against the appellant on the 28th February, 2000. The report of the Disciplinary Tribunal was sent to the appellant on the 6th March, 2000.

On the 24th March, 2000, a notice of motion returnable for the 10th April, 2000, was brought pursuant to s.8(1)(a)(1) of the Solicitors (Amendment) Act, 1960, as substituted by s.18(1) of the Solicitors (Amendment) Act, 1994, to strike the appellant off the Roll of Solicitors.

Matters than came to a halt because the appellant at that point sought to bring judicial review proceedings in the High Court to challenge, inter alia, the procedures of the Disciplinary Tribunal. Included as a ground for seeking relief in these proceedings was a complaint of delay on the part of the Society in prosecuting the proceedings.

The application for leave was heard by the High Court (O'Caoimh J.) on the 22nd May, 2000, when leave was granted on some grounds and refused on others.

The appellant appealed the refusal to grant leave on certain grounds, but the Supreme Court dismissed this appeal following a hearing on the 18th May, 2001.

The judicial proceedings continued in the usual manner and came on for hearing before the High Court (Carroll J.) on the 22nd and 23rd March, 2002. Judgment was reserved by the trial judge who thereafter delivered judgment on the 16th October, 2002. Carroll J. dismissed the appellant's claim. The appellant did not appeal this decision.

In the course of the hearing before this court, it was pointed out to the appellant that one of the grounds upon which leave to bring the judicial review proceedings had been granted in the High Court was the appellant's complaint of delay. However, it appears to this court, and indeed was accepted by the appellant, that this ground was not argued before Carroll J. or pursued during those proceedings.

On the 24th February, 2003, the motion to strike off the appellant was again brought before the President of the High Court. He listed the matter for further mention on notice to the appellant on the 10th March, 2003. On various dates thereafter in May and June, 2003, various submissions were made to the court by the appellant.

The court then invited the appellant to formalise his submissions by way of three separate motions. The motions were heard by the President of the High Court on the 22nd July, 2003, and a written judgment was given by the President on the 31st July, 2003.

The motions had sought: -

(1) An order discharging the orders of the 30th September, 1991, the 7th October, 1991, and the 15th October, 1991.

(2) An order extending the time to appeal the finding of the Disciplinary Tribunal made in February, 2000, that the appellant was guilty of misconduct.

(3) An order striking out the motion of the Society dated 24th March, 2000, seeking to strike the appellant off the Roll of Solicitors.

All three motions were refused by the President, and it is from such refusal that the appellant brings this appeal before this court. The appeal was heard by this court on the 18th January, 2005. Prior thereto on the 14th January, 2005, the appellant brought an application before a differently constituted chamber of the Supreme Court requesting a payment out of funds, the subject matter of the freezing orders, for the provision of legal representation for his appeal. On the 14th January, 2005, the court refused the appellant's request on the grounds of his delay in moving the application, the same not having been brought until a point in time when the hearing of his appeal was...

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