The Law Society of Ireland v Callanan

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART,Mr. Justice Gerard Hogan
• Judgment Date: 21 July 2017
• Neutral Citation: [2017] IECA 217
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 237 of 2015],Neutral Citation Number: [2017] IECA 217
• Date: 21 July 2017

BETWEEN/

THE LAW SOCIETY OF IRELAND

APPLICANT/RESPONDENT

- AND–

PATRICK E. CALLANAN

RESPONDENT/APPELLANT

[2017] IECA 217

Peart J.

Hogan J.

FINLAY GEOGHEGAN J.

PEART J.

HOGAN J.

Neutral Citation Number: [2017] IECA 217

RECORD NO. 237/2015

THE COURT OF APPEAL

Professional misconduct – Proportionality – Jurisdiction – Appellant seeking to appeal against High Court order – Whether there was jurisdiction to make the order that was made

Facts: The appellant, Mr Callanan, is a solicitor against whom complaints of very serious professional misconduct were made to the Complaints and Client Relations Committee of the Law Society by a solicitor with whom he practised in partnership over many years. The appellant made full admissions of guilt before that committee in respect of the misconduct complained of. Pursuant to its power under s. 7 of the Solicitors (Amendment) Act 1960, the Society made application to the Disciplinary Tribunal for an inquiry into the appellant's conduct. Having concluded that a prima facie case for an inquiry existed, the Tribunal held an inquiry involving the taking of oral evidence and hearing legal submissions. At the conclusion of its inquiry the Tribunal issued a Report dated 28th October 2014 to the High Court as provided for by s. 7(3)(c) of the 1960 Act. In its Report the Tribunal considered the legal principles applicable to what penalty ought to be imposed on the appellant, including that of proportionality. It also considered the question as to what if any credit ought to be given to the appellant in respect of mitigating factors. The Society brought the Tribunal's report and recommendation as to sanction before the President of the High Court by its notice of motion dated 10th February 2015 pursuant to s. 7(3)(c)(iv) of the 1960 Act. Apart from seeking an order for the costs of the Disciplinary Tribunal proceedings, the Society sought an order that the name of the appellant be struck off the roll of solicitors, notwithstanding the Tribunal's view that the ultimate sanction of a strike-off was not warranted in all the circumstances. The President held that he would fully restrain the appellant from practising as a solicitor for 10 years and thereafter may seek leave of the Court to reassess the situation in terms of a possible limited practising certificate. The appellant appealed to the Court of Appeal against that order, submitting that there was no jurisdiction to make the order that was made.

Held by Peart J that there were three difficulties with the order made by the President: 1) the ten year period of suspension must be considered to be an outlier in terms of its length when compared to the length of other suspensions imposed; 2) the order requires that even after the ten year suspension has come to an end the solicitor must still make some application to the High Court in the event that he wishes to resume practising as a solicitor; 3) the solicitor is precluded from making any application to the High Court during the currency of the suspension period to have the suspension lifted. Peart J held that the appellant was correct in his submission that there was no jurisdiction to make the order that was made in this case.

Peart J held that he would allow the appeal, and would vacate the orders made by the President. He favoured remitting the matter back to the President so that he may consider the question of a proportionate sanction within the menu of sanctions available under s. 8(1) of the 1960 Act.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 21ST DAY OF JULY 2017

Background

1 The appellant is a solicitor against whom complaints of very serious professional misconduct were made to the Complaints and Client Relations Committee of the Law Society ('the Society') by a solicitor with whom he practised in partnership over many years. The appellant made full admissions of guilt before that committee in respect of the misconduct complained of.

2 Those acts of misconduct fall into two categories. Firstly, in 2004 he provided to three financial institutions a false certificate of earnings in respect of his sister, as well as a false confirmation to two such institutions that she was employed as a law clerk in his firm, in order to assist her in obtaining a loan to purchase a house upon her return from the United States, in circumstances where she was never so employed. Secondly, having purchased a property himself in 2004 with a loan from Ulster Bank secured on that property, he in 2005, 2006 and again in 2007 gave a number of solicitors' undertakings to his partner to sign in relation to the property already purchased, to facilitate further loans from other lending institutions on the strength of those undertakings, all with a view to obtaining funds with which to purchase two investment properties in Shanghai. His partner signed those undertakings not having been made aware of their improper purpose. The monies were drawn down by the appellant and the properties in Shanghai were purchased.

3 The brevity with which I have summarised these complaints should not be considered to disguise or understate the egregious nature of the appellant's misconduct which is evident from the very thorough description of events in the papers before the Court, or the devastating effect of that misconduct on his partner when he discovered it some years later. His partner was of course exposed to a very significant potential personal liability to the lending institutions on foot of the undertakings which he had unwittingly signed at the appellant's request.

4 As it happens, the properties in Shanghai were sold with the appellant's cooperation with the result that no lending institution or his former partner has suffered a financial loss arising from the undertakings. The proceedings before the Solicitors' Disciplinary Tribunal were adjourned from time to time at the appellant's request to enable him to make arrangements to have the Shanghai properties sold. It is also the case that no financial loss arose on foot of the false certificates of earnings and confirmation of employment provided by the appellant in order to assist his sister to purchase a house.

The Disciplinary Tribunal's inquiry and report

5 Pursuant to its power under s. 7 of the Solicitors (Amendment) Act, 1960, as substituted by s. 17 of the Solicitors (Amendment) Act, 1994 the Society made application to the Disciplinary Tribunal for an inquiry into the appellant's conduct. Having concluded that a prima facie case for an inquiry existed, the Tribunal held an inquiry involving the taking of oral evidence and hearing legal submissions on a number of different dates during the period March 2011 and August 2014.

6 At the conclusion of its inquiry the Tribunal issued a Report dated 28th October 2014 to the High Court as provided for by s. 7 (3)(c) of the 1960 Act, as substituted by s. 9 of the Solicitors (Amendment) Act, 2002.

7 Section 7(3)(c) of the 1960 Act provides:

'... (c) On completion of the inquiry the Disciplinary Tribunal shall specify in a report (which shall include a verbatim note of the evidence given and submissions made) to the High Court:-

(i) the nature of the application and the evidence laid before them,

(ii) the finding made on each allegation of misconduct and the reasons therefore,

(iii) any other matters in relation to the respondent's solicitor which they may think fit to report,

(iv) in case they find that there has been misconduct on the part of the respondent's solicitor and they have not made, and do not intend to make, an order under subsection (9) of this section:-

(I) their opinion as to the fitness or otherwise of the respondent's solicitor to be a member of the solicitor's profession, having regard to their findings, and

(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to their findings, to any finding of misconduct on the part of the respondent solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor,

and in that case the Society shall bring the report before the Court.'

8 In its Report the Tribunal considered the legal principles applicable to what penalty ought to be imposed on the appellant, including that of proportionality, by reference to legal authorities to which the parties had referred during legal submissions. It considered the question also as to what if any credit ought to be given to the appellant in respect of mitigating factors such as his early admission of guilt, and his cooperation in relation to the sale of the Shanghai properties which ensured that no party was at a financial loss doe to his misconduct, and in addition that there was no loss arising as of the date of the Report from the loan obtained by his sister by virtue of the false certificate of earnings and employment that he had provided. It appears that her mortgage repayments were at all times up to date.

The Tribunal's Recommendation as to sanction

9 The Tribunal's Report concluded as follows:

'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...