Law Society of Ireland v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 30 March 2023
• Neutral Citation: [2023] IEHC 165
• Court: High Court
• Docket Number: [2023 No. 3 S.A.] [2021 No. DT06]

In the Matter of Christopher B. Walsh, A Solicitor of Christopher B. Walsh Solicitors 90 Park Drive Avenue, Castleknock, Dublin 15

And in the Matter of the Solicitors Acts 1954 – 2015

Between

Law Society of Ireland

Applicant

and

Christopher B. Walsh

Respondent

[2023] IEHC 165

[2023 No. 3 S.A.]

(FROM SOLICITORS DISCIPLINARY TRIBUNAL)

[2021 No. DT06]

THE HIGH COURT

Misconduct – Sanctions – Proportionality – Applicant seeking orders restricting the respondent’s practice as a solicitor – Whether the sanctions recommended by the Solicitors Disciplinary Tribunal were proportionate

Facts: The Solicitors Disciplinary Tribunal held an inquiry into the conduct of the respondent solicitor, Mr Walsh, and prepared a report which was signed on behalf of the Tribunal on 29th November, 2022, by its Chairperson. By a notice of motion issued on 17th January, 2023, the applicant, the Law Society of Ireland, brought the report before the High Court and sought the following orders and reliefs: (1) an order that the respondent not be permitted to practise as a sole practitioner or in partnership, that he permitted only to practise as an assistant solicitor, in the employment and under the direct control and supervision of another solicitor of at least ten years’ standing to be approved in advance by the applicant; (2) that the respondent pay a sum of €7,551.50 as a contribution towards the costs of the applicant in the Tribunal proceedings; (3) an order that the respondent pay a sum of €2,000 to the Compensation Fund; and (4) an order that the respondent pay the costs of the application with legal costs to be adjudicated in default of agreement. In the event that the court was to make an order imposing a limited practising certificate on the respondent, further ancillary orders were sought in the notice of motion. While the respondent admitted the professional misconduct found by the Tribunal and agreed to pay the various sums referred to above in respect of the applicant’s costs of the proceedings before the Tribunal, as well as the sum which the Tribunal ordered the respondent to pay to the Compensation Fund and the agreed costs in respect of the appicant’s application to the High Court (which were agreed at €3,700.50), the respondent asked the court not to make the orders restricting his practice as a solicitor, which was the sanction recommended by the Tribunal. Instead, he submitted that the court should impose a lesser sanction, such as a censure.

Held by Barniville P that a lesser sanction than that recommended by the Tribunal would be excessively lenient and would not adequately reflect the seriousness of the findings of misconduct made against the respondent in the proceedings, particularly when considered with the respondent’s very poor disciplinary record. Barniville P concluded that the sanctions recommended by the Tribunal were proportionate and would appropriately take account of the various matters which the court must consider in determining the appropriate sanction.

Barniville P adopted the recommendation as to sanction made by the Tribunal in its order and report, and made the orders sought by the applicant in its notice of motion. Barniville P deferred making the ancillary orders until the parties had had the chance to consider the judgment following its electronic delivery. Barniville P directed that no order be drawn up on foot of the judgment until the parties had had the opportunity of considering it.

Application granted.

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 30 ^th Day of March, 2023

1. Introduction

1 . This is my judgment on an application by the Law Society of Ireland (the “Society”) for various orders against the Respondent Solicitor, Christopher B. Walsh (“Mr. Walsh”).

2 . The Society has brought before the court a Report of the Disciplinary Tribunal (“the Tribunal”) under s. 7 of the Solicitors (Amendment) Act 1960 (as substituted by s. 17 of the Solicitors (Amendment) Act 1994, and as further amended by s. 9 of the Solicitors (Amendment) Act 2002 and s. 186 of the Legal Services Regulation Act 2015 (“the 2015 Act”). The Tribunal held an inquiry into the conduct of Mr. Walsh and prepared a Report which was signed on behalf of the Tribunal on 29 ^th November, 2022, by its Chairperson (the “Report”).

3 . By a notice of motion issued on 17 ^th January, 2023, the Society brought the Report before the court and sought the following orders and reliefs:

• (1) An order that the Respondent Solicitor not be permitted to practise as a sole practitioner or in partnership, that he permitted only to practise as an assistant solicitor, in the employment and under the direct control and supervision of another solicitor of at least ten years' standing to be approved in advance by the Law Society of Ireland;

• (2) That the Respondent Solicitor pay a sum of €7,551.50 as a contribution towards the costs of the applicant in the Solicitors Disciplinary Tribunal proceedings;

• (3) An order that the Respondent Solicitor pay a sum of €2,000 to the Compensation Fund;

• (4) An order that the Respondent Solicitor pay the costs of the within application with legal costs to be adjudicated in default of agreement.

4 . In the event that the court was to make an order imposing a limited practising certificate on Mr. Walsh, further ancillary orders were sought in the notice of motion.

5 . The Society's application was grounded on an affidavit sworn by David Irwin, a solicitor employed in the Society's Regulatory Legal Services Section, on 17 ^th January, 2023.

6 . The background to the Society's application is set out in some detail in Mr. Irwin's affidavit. The relevant facts are not in dispute and no replying affidavit was sworn by Mr. Walsh in response to the Society's application. While Mr. Walsh admitted the professional misconduct found by the Tribunal and while he has agreed to pay the various sums referred to above in respect of the Society's costs of the proceedings before the Tribunal, as well as the sum which the Tribunal ordered Mr. Walsh to pay to the Compensation Fund and the agreed costs in respect of the Society's application to the High Court (which were agreed at €3,700.50), Mr. Walsh asks the court not to make the orders restricting his practice as a solicitor, which was the sanction recommended by the Tribunal. Instead, he submits that the court should impose a lesser sanction, such as a censure.

7 . Mr. Walsh was admitted and enrolled on the Roll of Solicitors in July 1984 and practised as the principal of Christopher B. Walsh Solicitors in Castleknock, Dublin 15. A complaint was made against Mr. Walsh to the Society in April 2019 by a firm of solicitors in Northern Ireland acting for AIB Group (UK) Plc. The complainant firm advised that it acted for AIB which had advanced facilities to a Mr. McCormack in relation to the purchase of an apartment property in Dublin. Security for the loan facilities was to be a charge over the property. However, funds were drawn down on the strength of an undertaking given by Mr. Walsh on 28 ^th March, 2003 (the “undertaking”). In the undertaking, Mr. Walsh agreed on behalf of his client Mr. McCormack (the borrower), to complete the legal formalities in relation to the contract for sale of the property so as to ensure that his client would obtain good marketable title to the property free from encumbrances save for AIB's mortgage/charge and, pending completion of the transaction and the receipt of the documents of title, to hold the documents of title on trust for AIB and to its order and to deliver them to AIB. The complainant submitted that Mr. Walsh had failed to comply with the undertaking.

8 . In August 2021, the Society applied to the Tribunal for an inquiry into Mr. Walsh's conduct. On 9 ^th December, 2021, the Tribunal considered the documentation which had been submitted to it and found that there was a prima facie case of misconduct on the part of Mr. Walsh for inquiry by the Tribunal in respect of (a) the failure by Mr. Walsh to comply with the undertaking, and (b) the failure by Mr. Walsh to reply adequately, or at all, to ten letters written to him by the Society between May 2019 and July 2021.

9 . A separate division of the Tribunal held an inquiry into those two matters pursuant to s. 7 of the 1960 Act (as substituted by s. 17 of the 1994 Act and as amended by s. 9 of the 2002 Act and s. 186 of the 2015 Act), commencing on 5 ^th May, 2022. The inquiry continued on 27 ^th September, 2022, and concluded on 3 ^rd November, 2022. Mr. Irwin represented the Society at the inquiry. Mr. Walsh represented himself.

10 . A few days prior to the commencement of the inquiry on 5 ^th May, 2022, Mr. Walsh wrote to the Society on 28 ^th April, 2022, stating that he admitted the facts set out in the Society's application (as contained in a grounding affidavit sworn by Eamon Maguire) and also admitted that the allegations, the subject of the inquiry, and referred to in that affidavit, constituted professional misconduct on his part. Mr. Walsh expressed his regret in the letter and confirmed that he would not be objecting to the case made by the Society at the inquiry. Mr. Irwin drew that letter to the attention of the Tribunal on 5 ^th May, 2022.

11 . The Tribunal sought to ascertain from Mr. Walsh whether any progress had been made on his part in complying with the undertaking. Mr. Walsh sought to explain how his breach of the undertaking had arisen and, in that context, referred to a difficult personal situation which had arisen for him. He explained that he had mistakenly sought to register the deeds with the Property Registration Authority rather than with the Registry of Deeds. He admitted that it was his mistake and he apologised for it. He sought an adjournment of two months to enable him to complete the outstanding matters necessary to ensure compliance...