Re Burke

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 09 February 2001
• Neutral Citation: [2001] IESC 13
• Date: 09 February 2001
• Court: Supreme Court
• Docket Number: [S.C. Nos. 267 and 281

BURKE, RE

IN THE MATTER OF FRANK BURKE AND LORNA BURKE CARRYING ON PRACTICE AS FRANK BURKE AND COMPANY

v

IN THE MATTER OF THE SOLICITORS' ACTS 1954 TO 1994

[2001] IESC 13

Keane C.J.

Murphy J.

Murray J.

267 & 281/99

THE SUPREME COURT

Synopsis:

Solicitors

Solicitors; appellant seeking restoration to the roll of solicitors; applicant's name had been removed from roll by order of the High Court on foot of several episodes of dishonest conduct; applicant had been refused a limited certificate by the High Court that would restore his name to the roll but would not permit applicant to have control of financial matters; whether the High Court was entitled in all the circumstances of the particular case to refuse the application on the ground it was not satisfied that applicant was a fit and proper person to practise as a solicitor; s.10(4), Solicitors (Amendment) Act, 1960 as inserted by s.19, Solicitors (Amendment) Act, 1994.

Held: Appeal dismissed.

Re Burke - Supreme Court: Keane C.J., Murphy J., Murray J. - 09/02/2001 - [2001] 4 IR 445

The applicant sought restoration to the roll of solicitors. Keane CJ, delivering judgment, held that the learned President, Mr. Justice Morris, was entitled to refuse the application. The appeal of the applicant would be dismissed.

Citations

SOLICITORS (AMDT) ACT 1960 S10

SOLICITORS (AMDT) ACT 1960 S8

SOLICITORS (AMDT) ACT 1960 S8(1)(a)(i)

SOLICITORS (AMDT) ACT 1960 S7

SOLICITORS (AMDT) ACT 1994 S19

SOLICITOR (NO. 5) OF 1990 & SOLICITORS ACT 1974, IN RE UNREP LORD DONALDSON HOUSE OF LORDS 27.4.1990

EX-PARTE LENEHAN 1948 77 CLR 403

SOLICITORS (AMDT) ACT 1994 S19(4)

1 9th day of February 2001 by Keane C.J. [nem diss]

2 This is an appeal by Frank Burke (hereafter "the solicitor") from a judgment and order of the President of the High Court refusing his application for restoration to the roll of solicitors pursuant to the provisions of s. 10 of the Solicitors (Amendment) Act, 1960(as amended). The other party to the proceedings, the Law Society of Ireland (hereafter "the Society"), have also served a notice to vary the judgment of the learned President.

3 The statutory background to the proceedings should first be set out. The procedure under which the name of a solicitor may be struck off the roll is laid down in s. 8 of the Solicitors (Amendment) Act, 1960(hereafter "the 1960 Act"). Section 8(1)(a)(i) empowers the High Court to strike the name of a solicitor off the roll after consideration of a report of the Disciplinary Committee of the Society made under s. 7 of the 1960 Act. Section 10 of the 1960 Act then provides:-

4 2 "(1) The High Court shall have power to order that the name of a solicitor, whose name has been struck off the roll by an order made by the High Court under s. 8 of this Act ... shall be restored to the roll.

5 (2) A person seeking to have his name restored to the roll under this section may apply to the High Court and shall give notice of his intended application to the Society, who shall be entitled to appear and be heard on any such application.

6 (3) On the hearing of an application under this section the High Court may refuse the application or may order that the name of the applicant be restored to the roll and may order the payment by the applicant of the costs and expenses of the society in relation to the application."

7 Section 19 of the Solicitors (Amendment) Act, 1994(hereafter "the 1994 Act") amended s. 10 of the 1960 Act by the addition of the following subsection:

"(4) Where, on the hearing of an application under this section, it is shown that the circumstances which gave rise to the striking off the roll 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 or that the applicant was convicted of a criminal offence, the High Court shall not restore the applicant's name to the roll, either conditionally or unconditionally, unless it is satisfied that, having regard to all the evidence, 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."

8 In this case, the solicitor, who had been struck off the roll, made an application to the High Court pursuant to s. 10 for an order restoring his name to the roll and it is not in dispute that this application was affected by the provisions of subsection (4). The learned President refused the application on the ground that he was not satisfied that, having regard to all the evidence, the applicant was a fit and proper person to practise as a solicitor. He said, however, that he was not satisfied that the restoration of the applicant to the roll would adversely affect public confidence in the solicitors" profession as a whole or in the administration of justice. It is in respect of the latter finding by the learned President that the notice to vary in the present case is brought by the Society.

9 The facts, which are not in dispute, are as follows. The solicitor was admitted in 1973 and practised under the style and title of Frank Burke and Company Solicitors, until the 13th May 1991, when his name was struck off the roll by Hamilton P., as he then was. That was the result of a petition dated the 15th April 1991. The Disciplinary Committee had found that the solicitor had been guilty of a number of breaches of the Solicitors" Accounts Regulations and of conduct tending to bring the solicitors" profession into disrepute. The solicitor had, at the conclusion of a lengthy investigation, admitted that a deficit existed on the client account of the practice in the sum of £120,429.70. He also admitted to other breaches of the regulations, including the misappropriation of clients" funds. There were in all thirty allegations of misconduct found to have been proved or admitted by the solicitor.

10 There had been an earlier investigation of the solicitor in 1985 which also led to hearings before the Disciplinary Committee. Four separate allegations of misconduct were dealt with in that hearing and led to a recommendation by the Disciplinary Committee that the solicitor be struck off the roll. Hamilton P., as he then was, did not make an order striking the solicitor off the roll, but, in the light of the report of the Disciplinary Committee, he censured the solicitor and ordered him to pay a fine of £20,000. It is accepted that this was the largest fine up to that time imposed by the High Court in the case of a solicitor found guilty of misconduct.

11 It should be pointed out that the solicitor, in the course of an affidavit sworn by him in these proceedings, made commendably candid admissions. As to the 1985 investigation, he said

"I should therefore say candidly that I frustrated the original inquiry which ultimately led to the imposition of the fine of £20,000 by seeking to mislead the investigation conducted by the Society accountant."

12 In relation to the 1991 investigation which led to his being struck off, he said:

"The investigation into affairs of the practice took over a year and was unnecessarily protracted. I accept that the reason why the investigation was made more difficult was my fault. I wish to state this unequivocally. This was due in part to a failure to face up to the reality of the...