Law Society of Ireland v Tobin

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 21 July 2017
• Neutral Citation: [2017] IECA 215
• Date: 21 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 215 Record No.: 2015/143

[2017] IECA 215

THE COURT OF APPEAL

Peart J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 215

Record No.: 2015/143

BETWEEN/

THE LAW SOCIETY OF IRELAND

APPLICANT / RESPONDENT

- AND -

JOHN TOBIN

RESPONDENT / APPELLANT

Solicitors – Proportionality – Judicial discretion – Appellant seeking to appeal against the order that his name be struck from the roll of solicitors – Whether the sanction was proportionate

Facts: The appellant, Mr Tobin, by order of the High Court (Moriarty J) made on the 13th February 2015, was declared to be not a fit person to be a member of the solicitors' profession, and his name was ordered to be struck from the roll of solicitors. In addition, he was ordered to pay the costs of the proceedings, limited to a two day hearing, and the costs of the proceedings before the Solicitors Disciplinary Tribunal, to include witness expenses, when taxed or ascertained. Mr Tobin appealed to the Court of Appeal against that finding, and against the order that his name be struck from the roll of solicitors. He submitted that in a number of respects the trial judge failed to properly exercise his discretion under s. 8(1)(a) of the Solicitors (Amendment) Act 1960.

Held by Peart J that the trial judge did not fall into error in the manner in which he reached his conclusions, and determined firstly that the appellant was not a fit person to be a member of the solicitors' profession, and that his name should be removed from the roll. He was, in Peart J's view, on the facts of the case, and allowing for the efforts made by the appellant to rectify matters, to regard the case as being very serious and warranting the ultimate sanction; he was entitled to take account of the great level of indulgence afforded to the appellant in that regard, and to regard the progress made as limited in all the circumstances. Peart J was satisfied that the trial judge took into account such mitigating factors as there were in the case when considering the overall run of the case. Peart J held that the judge permitted ample and sufficient opportunity to the appellant to take such steps as he might be capable of taking in order to rectify matters, and in the hope that the ultimate sanction could be avoided; unfortunately it was not possible for the appellant to rectify the outstanding matters. Peart J considered the sanction to have been proportionate; it took account of the serious gravity of the misconduct, and its impact on the banks concerned.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 21ST DAY OF JULY 2017

1 By Order of the High Court (Moriarty J.) made on the 13th February 2015 the appellant ('Mr. Tobin') was declared to be not a fit person to be a member of the solicitors' profession, and his name was ordered to be struck from the roll of solicitors. In addition, he was ordered to pay the costs of the proceedings, limited to a two day hearing, and the costs of the proceedings before the Solicitors Disciplinary Tribunal, to include witness expenses, when taxed or ascertained.

2 Mr. Tobin appeals to this Court against that finding, and against the order that his name be struck from the roll of solicitors. He submits essentially that in a number of respects the trial judge failed to properly exercise his discretion under s. 8(1)(a) of the Solicitors (Amendment) Act, 1960 (as substituted by s. 18 of the Solicitors (Amendment) Act, 1994 and as substituted by s. 10(a) of the Solicitors (Amendment) Act, 2002 and s. 37(a) of the Civil Law (Miscellaneous Provisions) Act, 2008. For convenience I shall hereafter refer to those provisions simply as 's. 8 (1)(a) of the Act'. Following a number of amendments it now provides as follows:

'8(1) Where the Disciplinary Tribunal, after holding an inquiry into the conduct of a solicitor, makes a report to the High Court under section 7 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act which is brought before the Court by the Society under the said section 7, the following provisions shall have effect:

(a) the High Court, after consideration of the report and the submissions (if any) made to it by the Society under subsection (1A) of this section:

(i) may by order do one or more of the following things, namely:

(I) strike the name of the solicitor off the roll;

(II) suspend the solicitor from practice for such period and on such terms as the Court thinks fit;

(III) prohibit the solicitor from practising on his own account as a sole practitioner or in partnership for such period, and subject to such limitation as to the nature of his employment, as the Court may provide;

(IV) restrict the solicitor practising in a particular area for such period as the Court may provide;

(V) censure the solicitor or censure him and require him to pay a money penalty; and, in making any such order, the Court shall take account of any finding of misconduct on the part of the respondent solicitor previously made by the Disciplinary Tribunal (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and of any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor;

(ii) may by order direct that a specified bank shall furnish any information in its possession that the Society may require relating to any aspect of the financial affairs of the practice of the solicitor;

(iii) may by order direct that the solicitor shall swear an affidavit disclosing all information relating to or contained in any accounts, held in his own name or in the name of his firm or jointly with third parties, with any bank within a specified duration of time, to be fixed by the Court;

(iv) may make such order as to the costs incurred in the proceedings before it and the Disciplinary Tribunal as the Court thinks fit;

(v) may make any ancillary order in relation to the matter which the Court thinks fit.'

3 It is clear that in the hierarchy of sanctions listed in s. 8(1)(a) of the Act that which has the most serious consequences for the solicitor concerned is of striking him from the roll of solicitors, subject to any application he may subsequently make to be restored to the roll of solicitors pursuant to other provisions of the Acts. It is, if you like, the ultimate sanction, and as such, and given the principle of proportionality, appropriate by way of sanction in a very serious case, where it is considered necessary not only to protect the public, but to protect also the public's confidence in the solicitors' profession, and to protect and preserve the integrity of that profession.

4 Mr. Tobin submits that while the Court undoubtedly has power under the section to order his name to be struck from the roll of solicitors, being one of the suite of orders that may be made, the nature of the misconduct complained about, which he acknowledged, and the efforts that he has made to remedy the consequences of that misconduct, including his ongoing efforts, as well as other factors such as his age, all indicate that this case does not fall within that most serious category meriting the ultimate sanction of his name being struck off the roll. In particular he points to the fact the complaints made against him in the present proceedings (comprising in total some 31 separate allegations of misconduct) in the main relate to his failure to honour nine undertakings that he gave between 2000 and 2007 to three separate financial institutions, either in a timely fashion, or, in some cases as yet, at all, despite his best efforts as he sees it. Those undertakings facilitated drawdown of the substantial borrowings from the banks in question. Pursuant to them he was, inter alia, to register his borrower clients' titles to the properties following their purchase with the borrowings, and to put in place the banks' security by way of a first charge on the properties. In some of the transactions Mr. Tobin himself was the purchaser/borrower. In another, he was acting for his brother. In the remainder of the transactions he was acting for clients in the normal way. He points to the fact that none of these banks have suffered any financial loss, that he has honoured and been discharged from some of the undertakings, and that he is even yet strenuously engaged upon trying to honour the remainder which he believes to be still possible. In these circumstances he submits that the complaints are less serious than cases where clients have suffered a financial loss as a result of a solicitor's misconduct, and where the ultimate sanction of strike off would be necessary, proportionate and appropriate.

5 The nine complaints made to the Law Society against the appellant were considered initially by the Complaints and Client Relations Committee of the Regulation Department ('the Committee') of the Law Society. Before a decision was made by the Committee to refer each of the complaints to Solicitors Disciplinary Tribunal ('the Tribunal') for further inquiry pursuant to s. 7 of the Act of 1960 as substituted and amended, the Committee notified Mr. Tobin of the details of each complaint and gave him opportunities to respond. In many instances he failed to respond to the Committee's communications in a timely manner. This tardiness and neglect required the Committee to write a number of reminder letters to him, and in some instances necessitated the making of applications to the High Court for orders directing him to respond and to attend meetings of the Committee. He eventually did so, but this behaviour itself constituted further misconduct which was considered by the Tribunal, and, therefore, the trial judge, as part of the overall complaints being considered.

6 Each complaint came before the Tribunal, which sat for the purposes of its s. 7 inquiry into these...