Law Society of Ireland v Kathleen Doocey

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Ms. Justice Donnelly
• Judgment Date: 11 January 2022
• Neutral Citation: [2022] IECA 2
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2020/259

Between

Law Society of Ireland

Applicant/Respondent

and

Kathleen Doocey

Respondent/Appellant

[2022] IECA 2

Donnelly J.

Haughton J.

Collins J.

Record No.: 2020/259

THE COURT OF APPEAL

Roll of solicitors – Struck off – Professional misconduct – Appellant appealing against the order and the judgment of the President of the High Court – Whether the President of the High Court erred in her appraisal of the scope of her enquiry

Facts: The appellant, Ms Doocey, by order of the President of the High Court made on the 16th November, 2020, was struck off the roll of solicitors pursuant to s. 8 of the Solicitors (Amendment) Act 1960 as substituted and amended. Ms Doocey appealed to the Court of Appeal against that order and the judgment of Irvine P delivered on the 2nd November, 2020 ([2020] IEHC 581). Ms Doocey’s central contention was that the President erred in her appraisal of the scope of her enquiry. The Solicitors Disciplinary Tribunal found that Ms Doocey had been guilty of professional misconduct based on admissions that Ms Doocey had made. Ms Doocey had emphatically denied that she was guilty of dishonesty at any stage. Ms Doocey submitted that the Tribunal thereby accepted that she had no dishonest intent but that contrary to that finding, Irvine P concluded that Ms Doocey had been guilty of dishonest conduct. Ms Doocey submitted that the President was not entitled to substitute her own views of the evidence for the findings that the Tribunal had made. She submitted that an issue in the appeal was the limit of the High Court’s jurisdiction based on facts found proven by the Tribunal. Ms Doocey also contended that the President of the High Court erred in departing from the sanction that the Tribunal had recommended; the sanction imposed by the High Court was not proportionate to the facts that the Tribunal had found proved and to Ms Doocey’s personal circumstances with due regard to the relevant mitigating factors. Ms Doocey submitted that the judgment was vitiated by two additional errors at the level of principle; no weight was afforded to the measures that Ms Doocey and the independent professionals who had assisted her had put in place to protect the public, and Ms Doocey was punished for asserting (correctly) that no client of her firm had suffered loss and that no claim had been made on the Law Society’s Compensation Fund where the authorities recognise that these can be mitigating factors.

Held by Donnelly J that Ms Doocey admitted to misconduct before the Tribunal and the misconduct found against her on the basis of those admissions was of misconduct set out in the complaints and in the facts set out in the affidavit filed before the Tribunal on behalf of the respondent, the Law Society. Donnelly J held that Ms Doocey was admitting to conduct that was objectively dishonest based upon facts of which she had actual knowledge. Donnelly J held that Irvine P was therefore entitled to find that the misconduct findings amounted to proven dishonesty. Donnelly J held that in the exercise of her independent role in the disciplinary regime for solicitors, the President was entitled to come to her own conclusion on the appropriate sanction and not to follow the recommendation by the Tribunal. Donnelly J held that the President took into account all relevant factors. Donnelly J held that the President was entitled to find that the system put in place for the protection of Ms Doocey’s present and future clients was not watertight. Donnelly J held that the President was also entitled to find that the respondent was minimising the significance of her actions by seeking to rely upon the fact that no client suffered financial loss as a result of her actions and that she demonstrated a complete lack of understanding concerning her obligations to her client, her profession and the administration of justice. Donnelly J held that the President was entitled to find that the making up of the shortfall did not mitigate against the systematic dishonest practice of Ms Doocey.

Donnelly J held that the appeal would be dismissed. Given that Ms Doocey’s appeal had failed, it appeared to Donnelly J to follow that the Law Society was entitled to the costs of the appeal, to be adjudicated in default of agreement.

Appeal dismissed.

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 11 January 2022

1 I agree with the judgment of Donnelly J and accordingly I agree that this appeal should be dismissed. I wish to add some brief observations of my own on the appeal. For that purpose, I gratefully adopt the detailed factual narrative set out in the judgment of my colleague.

2 There was no issue before the Solicitors Disciplinary Tribunal (“ the Tribunal”), the High Court or before this Court on appeal as to whether Ms Doocey (“ the Solicitor”) was guilty of professional “ misconduct”. Misconduct was admitted by the Solicitor in multiple respects.

3 The sole issue before the High Court was as to the appropriate sanction for the admitted misconduct of the Solicitor and, specifically, whether that misconduct was sufficiently serious to warrant the making of an order striking her off the roll of solicitors. Before the Tribunal, the position of the Law Society was that such a sanction was appropriate and it asked the Tribunal to make a recommendation to that effect (the sanction of strike-off being reserved to the High Court). That was also the sanction sought by the Law Society when the report of the Tribunal was brought before the High Court pursuant to section 7(3)(c) of the Solicitors (Amendment) Act 1960 (as amended) ( “the 1960 Act”). While the Tribunal had not recommended that the Solicitor be struck off and had instead recommended sanctions short of a strike-off, its recommendations did not bind the Law Society. More importantly, the Tribunal's recommendations as to sanction did not bind the High Court and it was clearly entitled to make an order striking off the Solicitor: section 8(1)(a)(i) of the 1960 Act. There is “no question of [the High Court] being bound by an opinion expressed or by a recommendation made by the Tribunal” and “ in all cases the ultimate arbiter is the court” (per McKechnie J in Law Society v Coleman [2018] IESC 80, para 61).

4 “ Misconduct” is defined in section 3 of the 1960 Act. For the purposes of this appeal, the relevant part of the definition is (e), which refers to “any other conduct tending to bring the solicitors' profession into disrepute.” “ Dishonesty” is not a separate category or heading of misconduct for the purposes of the 1960 Act. 1 Neither is dishonesty a precondition to the making of a strike-off order under section 8(1)(a)(i).

5 Honesty is, of course, a fundamental attribute required of all legal professionals in practice in the State. Members of the Bar of Ireland have a duty to “ act at all times with honesty and integrity” (Rule 2.3(b) of the Code of Conduct for the Bar of Ireland). Similar obligations are proposed in the draft Code of Practice for Practising Barristers that the Legal Services Regulation Authority has issued for consultation pursuant to section 22 of the Legal Services Regulation Act 2015 (“ the 2015 Act”) (paragraphs 3.3 and 3.4). As regards solicitors, the Law Society's Guide to Good Professional Practice identifies honesty as one of the “ core values” of the profession which “ a solicitor should at all times observe and promote” and avoid “any conduct or activities inconsistent with those values.” A solicitor, the Guide says simply, “ must be honest in his practice as a solicitor in all his dealings with others” (section 1.3). 2 Because solicitors handle client monies, their adherence to the standards of honest conduct is, of course, of particular importance. The need for absolute honesty — and the serious consequences for solicitors of any departure from honest conduct — is emphasised time and again in the authorities.

6 We were referred to a great many authorities but for present purposes I do not think it necessary to look beyond the decisions of the Supreme Court in In re Burke [2001] 4 IR 445 and Carroll v Law Society of Ireland [2016] IESC 49, [2016] 1 IR 676.

7 In re Burke concerned an application by a solicitor for restoration to the roll of solicitors under section 10 of the 1960 Act. Section 10(4) of the 1960 Act (inserted by section 19 of the Solicitors (Amendment) Act 1994) provides that, where it is shown that the “the circumstances which gave rise to the striking off 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…” the High Court cannot restore the applicant's name, even conditionally, unless it is satisfied that “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.” Speaking for the Supreme Court, Keane CJ identified the rationale of section 10(4) as follows:

“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.” (at page 451)

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