Law Society of Ireland v Coleman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 04 May 2023 |
| Neutral Citation | [2023] IECA 108 |
| Docket Number | Supplemental Judgment No. 2 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 108
Whelan J.
Faherty J.
Binchy J.
Supplemental Judgment No. 2
Appeal Number: 2021/13
THE COURT OF APPEAL — UNAPPROVED
JUDGMENT of Mr. Justice Binchy delivered on the 4 th day of May 2023
. This judgment is supplemental to two earlier judgments delivered by me on 11 th July 2022 (the “Principal Judgment”) and 7 th September 2022 (the “first supplemental judgment”) and should be read in conjunction with those earlier judgments.
. All judgments are concerned with an appeal from a decision of the High Court (Simons J.) of 7 th September 2020, on an application brought by the respondent pursuant to s.8 of the Solicitors Amendment Act, 1960 (the “Act of 1960”) (as substituted by the Solicitors (Amendment) Act 1994 and as further amended by the Solicitors (Amendment) Act 2002) whereby, in granting the orders sought by the respondent, the trial judge concluded, inter alia:
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(1) That the appellant could not resile from admissions as to fact made by him before the Solicitors Disciplinary Tribunal (“SDT”) in February 2010;
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(2) That the conclusion of the SDT that the conduct admitted by the appellant constituted misconduct was “ legally sustainable”, as that term was used by McKechnie J. speaking for the Supreme Court in Law Society of Ireland v Coleman [2018] IESC 80;
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(3) That the findings of misconduct on the part of the appellant involve dishonesty and
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(4) That notwithstanding certain mitigating factors (considered at para. 235 of his judgment) the appropriate sanction to be imposed upon the appellant in respect of his misconduct was an order striking his name off the Roll of Solicitors.
. The conduct in respect of which the appellant had made admissions before the SDT was to the effect that the solicitor had:
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(a) Caused or allowed the name of another solicitor, Mr. Michael O'Donnell, to be written on a contract for sale dated 19 th May 2004, identifying Mr. O'Donnell as a purchaser “in trust”, without the authority of Mr. O'Donnell;
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(b) Caused or allowed a fictitious contract dated 19 th May 2004 to come into existence, purportedly made between clients of the appellant , as vendors, and Mr. O'Donnell (in trust), as purchaser, for the purpose of misleading ACC Bank into advancing monies to another client of the appellant, Fairview Construction Ltd, knowing that the sale of the land from Fairview, to third party purchasers had not closed, and that the dwelling units to be constructed thereon, had not been constructed. As explained in the Principal Judgment, the purpose of this arrangement was to circumvent a condition of a loan approval issued by ACC Bank to Fairview.
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(c) Destroyed a file consisting of three contracts relating to the contract of 19 th May 2004, without the express or implied instructions of both parties thereto and
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(d) Acted for both vendor/builder, i.e. Fairview, and the purchasers of 13 newly constructed houses thereby involving himself in a possible conflict of interest contrary to the provisions of Article 4(a) of the Solicitors (Professional Practice, Conduct and Discipline) Regulations, 1997.
. While the appellant admitted the above matters of fact, he did not admit that they constituted misconduct or dishonesty on his part.
. As mentioned above, the hearing before the SDT took place in February 2010. The reason that the proceedings came before Simons J. in 2020 may briefly be explained. Following the hearing before the SDT, the respondent made application to the High Court for an order striking the name of the appellant from the Roll of Solicitors. Those proceedings came on for hearing before the then President, Kearns P., who made such an order in July 2010. The appellant appealed that order. At the time, prior to the establishment of this Court, there was a very lengthy delay in the hearing of appeals to the Supreme Court, and the appeal did not come on for hearing until 2018. In a decision of the Supreme Court (McKechnie J.) of 1 st May 2019 (being the decision referred to at para.2(2) above), the appeal was allowed, and the application of the respondent was remitted to the High Court for a rehearing.
. As is recorded by the trial judge in his judgment of 7 th September 2020, the position adopted by the appellant before the SDT was to make admissions as to fact with a view “to relying thereafter on his cooperation as a mitigating factor in a plea for leniency” (para. 105 of the judgment of Simons J.). However, before the High Court, the appellant took an approach described by the trial judge as a “volte face”. The appellant resiled from the admissions made before the SDT and decided to challenge the findings of fact made by the SDT, mainly on procedural grounds. The trial judge held against the appellant, and I upheld the conclusions of the trial judge in this regard in the Principal Judgment.
. The appellant also contended in the High Court that the allegations made against him by the respondent did not allege misconduct on his part, and he further argued that his conduct did not constitute dishonesty. Here again the trial judge held against the appellant, concluding that, by admitting to the conduct in the terms described in the complaints made against him by the respondent, the solicitor was, in effect, admitting misconduct. At para. 106 of his judgment, the trial judge held: “The conduct as set out in the complaints could not be characterised as anything other than professional misconduct”, and later in his judgment, at paras. 231, and following, the trial judge concluded that the findings of misconduct against the appellant involved dishonesty. This conclusion too was upheld by me in the Principal Judgment, at para. 165. That conclusion was further affirmed in the first supplemental judgment, which was necessitated owing to a breakdown in communications between the Court office and the appellant, in circumstances where this Court had, prior to delivering the Principal Judgment, afforded the parties an opportunity to make submissions arising out of a decision handed down by another division of this Court in the case of Law Society of Ireland v. Kathleen Doocey [2022] IECA 2 following upon the conclusion of the hearing of this appeal.
. Having concluded that the conduct to which the appellant had admitted involved dishonesty, the trial judge, having considered all relevant authorities, and having considered factors advanced by way of mitigation, concluded that he had no alternative but to impose the sanction of strike off upon the appellant. At para. 237, the trial judge stated:
“I have carefully considered whether a lesser sanction, such as a temporary suspension or the imposition of restrictions on the right to practice, might be imposed instead. I am satisfied that such a lesser sanction would not be proportionate to the gravity of the misconduct in this case. The misconduct involved a cavalier disregard of the importance of ensuring that contracts for sale are properly executed and can be relied upon by all parties. The admitted purpose had been to mislead a financial institution into advancing funds to the clients of the Solicitor. If unchecked, conduct of this type runs the risk of undermining the efficacy of lending in respect of development projects. More generally, it undermines confidence in the role of a solicitor in conveyancing transactions.”
. The trial judge then proceeded to consider certain personal circumstances advanced on behalf of the solicitor by way of mitigation, but concluded that those circumstances did not ameliorate the gravity of his misconduct. Accordingly, he made an order in the terms sought by the respondent, striking the name of the appellant from the Roll of Solicitors pursuant to s.8 of the Act of 1960.
. In the Principal Judgment, I also upheld the decision of the trial judge in respect of the sanction to be imposed upon the appellant. However, the appellant subsequently represented to the court that he had at all times understood that he would be afforded the opportunity to address the court on the question of appropriate sanction, if the Court held against him in relation to the findings of the trial judge as regards his admissions to the SDT, in relation to misconduct and dishonesty. While this was not the understanding of the Court, it was clear that there had been a misunderstanding and, having regard to the gravity of the matter, the Court agreed to hear further submissions from the parties directed exclusively to the issue of appropriate sanction having regard to the decision of the Court to uphold the conclusions of the trial judge, and in particular his conclusions that the appellant was bound by his admissions to...
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