The Law Society of Ireland v Callanan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 11 April 2018 |
| Neutral Citation | [2018] IEHC 160 |
| Docket Number | [2015 No. 6SA] |
| Court | High Court |
| Date | 11 April 2018 |
[2018] IEHC 160
Kelly P.
[2015 No. 6SA]
THE HIGH COURT
Professional Ethics & Conduct – Disciplinary regulations – Professional misconduct – The Solicitors Act, 1954 – Strike-off order.
Facts: Following the order of the High Court for restraining the respondent from practicing as a solicitor for a period of 10 years and then the successful appeal of the respondent against that order, the matter came up for fresh hearing before the present Court. The applicant and the Statutory Disciplinary Tribunal ('Tribunal') both held that the respondent was guilty of professional misconduct. The respondent accepted the allegation of professional misconduct made by the applicant; however, he contended that nobody had suffered any financial loss as a result of his activities. The respondent contended that the Court should have upheld the decision of the Tribunal and not acceded to the applicant's application to strike him off the roll. The applicant argued that the conduct of the respondent was so outrageous that the only possible recommendation was to strike off the respondent.
Mr. Justice Kelly P. directed that the respondent should have been struck off the roll of the solicitors. The Court also ordered the respondent to pay a certain sum as contribution towards the costs of the Law Society before the Tribunal along with the sum in respect of the attendances of the respondent before the Tribunal. The Court found that the strike-off order was proportionate and appropriate for the reassurance of the public that they might continue to have trust in the solicitor's profession.
The respondent (Mr. Callanan) was admitted to the Roll of Solicitors on 31st March, 1995. He was a partner in the firm of Wells & O'Carroll at Main Street, Carrickmacross, Co. Monaghan from 2001 until March 2009. After ceasing to be a partner he remained in employment as a solicitor in that firm until 6th November, 2009. Shortly thereafter a complaint was made by his former partner in that firm Enda P. O'Carroll concerning Mr. Callanan's conduct. That complaint resulted in an application for an inquiry and a hearing before the Solicitors Disciplinary Tribunal (SDT).
Following a hearing by the SDT Mr. Callanan was found guilty of five counts of professional misconduct. They were that he:-
(1) Provided a certificate of earnings in respect of his sister, N. to Permanent TSB dated 15th September, 2004 knowing the contents of the certificate to be false;
(2) Provided a certificate of earnings in respect of his sister, N. to ICS Building Society dated 14th September, 2004 knowing the contents of the certificate to be false;
(3) Provided a certificate of earnings in respect of his sister, N. to IIB Home Loans Ltd. dated 15th September, 2004 knowing the contents of the certificate to be false;
(4) Provided a certificate to Permanent TSB and IIB Home Loans representing that his sister, N. was employed as a law clerk with the firm of Wells & O'Carroll, solicitors when she had never been employed by that firm;
(5) Gave or caused to be given multiple undertakings to named lending institutions to register a first charge in their favour in respect of the property at 8, Carraig Brooke, Ivy Lane, Carrickmacross, Co. Monaghan.
Mr. Callanan issued the certificates the subject of misconduct findings 1 – 4 to enable his sister who had recently returned from the United States to obtain a mortgage on a home which she intended to purchase. The certificates were false in all material respects and his sister had never been employed in Mr. Callanan's firm.
The fifth finding arose in circumstances where Mr. Callanan purchased a property in 2004 and granted a mortgage of it in favour of the Ulster Bank. Mr. Callanan was advised of investment opportunities to purchase property in China. On three separate occasions in 2005, 2006 and 2007 respectively he placed undertakings before his partner, all of them in respect of the property which he had purchased in 2004 and had his partner sign those undertakings. The undertakings were to register a first charge in favour of the lending institutions in respect of the relevant property. These undertakings were false and could never be met because a first charge had already been registered on the property at the time of its purchase.
When the SDT first convened on 22nd March, 2011 a letter was handed in from Mr. Callanan accepting that the facts alleged against him were correct and that they amounted to professional misconduct on his part. Mr. Callanan proposed to the SDT that he would sell two of his properties in China and give over the proceeds so that no liability would arise for his partner on foot of the undertakings. As a result the hearing was adjourned until later in 2011 and then until dates in 2012, 2013 and 2014. It was not until 2014 that the second of the Chinese properties was sold and the amounts realised were sufficient to discharge the liabilities and thus rendered his partner free from potential liability. In the event no loss was incurred on foot of the wrongdoing of Mr. Callanan.
Insofar as his sister's affairs were concerned she succeeded in obtaining a mortgage and that mortgage has been serviced by her throughout. Thus, no loss has been incurred in respect of those letters either.
The Society urged the SDT, in considering the question of penalty, to recommend that Mr. Callanan's name be struck off the Roll of Solicitors. It did so because his acts amounted to egregious dishonest misconduct. In such circumstances it was argued that no other sanction was appropriate.
Mr. Callanan urged the SDT to take a different course. He contended that he was under extreme emotional pressure to assist his sister in purchasing a property upon her return to this country from America. He pointed out that with the sale of the Chinese property the undertakings wrongfully given were ultimately honoured notwithstanding the fact that the whole affair caused considerable distress and inconvenience to his partner for a substantial number of years. He also apologised for his behaviour and accepted that it was a complete breach of trust.
In formulating its recommendation the SDT said as follows:-
'From the authorities furnished it appears to the Tribunal, therefore, that in considering what penalty to impose on a solicitor found guilty of misconduct it should consider the following:-
1) First and most importantly it must protect the good name of the profession.
2) It must consider how the public can be best protected.
3) There may be a punitive element in the penalty.
4) Will the decision or recommendation cause real injustice to the solicitor concerned? This also relates to the principle of proportionality canvassed by Mr. Gavagan in his submissions.
In addition, one further essential question the Tribunal has to consider is whether credit should be given to the respondent solicitor for his early admissions of guilt. The fact that he cooperated fully with the Law Society and his partner in attempting to reverse the position in which his partner found himself and indeed succeeded in doing so. The Tribunal recognised that the question of the sister's mortgage is still an issue but given that the mortgage has now been extant for almost 10 years and is fully serviced there appears to be little or no financial risk to any person in respect of that particular issue.
The Tribunal is of the view that credit should be given to solicitors, who despite having committed egregious acts of misconduct do cooperate fully upon those acts being discovered and at no cost to any other person remedy the situation. The Tribunal does not wish to state that there may not be instances where despite all attempts at amelioration, the conduct is so outrageous that the only possible recommendation is to strike off the respondent solicitor but the Tribunal does not believe that this is one of these cases. The Tribunal fully recognises the absolute distress that the respondent solicitor's partner has suffered as a result of the respondent solicitor's actions but is of the view that, if the respondent solicitor had not fully cooperated and/or remedied the damage his actions had caused his partner and the Law Society's distress would have been ultimately far greater and therefore the respondent solicitor must be given credit for his actions in remedying the misconduct.
Accordingly, this Tribunal does not propose to recommend to the President of the High Court that the name of the respondent solicitor be struck off the Roll of Solicitors but not without considerable misgiving. Placing his partner in the invidious position in which he found himself was misconduct of the most serious kind and deserves severe punishment.
However, the Tribunal is of the view that this punishment can be achieved without resorting to the ultimate sanction, thus encouraging solicitors in similar circumstances to cooperate fully with the Law Society and other complainants to ensure that their misconduct is remedied insofar as it can be.
The Tribunal therefore recommends that:-
1) The respondent solicitor be given a limited practising certificate to practise as an assistant solicitor with a solicitor of not less than 10 years standing;
2) The respondent solicitor must never be given cheque signing rights over any client account; and
3) The respondent solicitor when seeking employment as a solicitor must furnish any prospective solicitor/employer with a copy of these findings.
In imposing these sanctions the Tribunal has taken account of the principles set out in O'Carroll & Colley, and the necessity for the decision to be proportionate and appropriate.'
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