Walsh v Law Society of Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date23 January 2017
Neutral Citation[2017] IEHC 25
Docket Number[2016 No. 80SA]
Date23 January 2017

[2017] IEHC 25

THE HIGH COURT

Kelly P.

[2016 No. 80SA]

IN THE MATTER OF DAVID WALSH FORMERLY PRACTISING AS DAVID WALSH & CO., SOLICITORS, OF MOUNT STREET, MULLINGAR, CO. WESTMEATH

AND

IN THE MATTER OF THE SOLICITORS ACT 1954-2011

BETWEEN
DAVID WALSH
APPLICANT
AND
LAW SOCIETY OF IRELAND
RESPONDENT

Professional Ethics & Conduct – S. 10 of the Solicitors (Amendment) Act 1960 as amended by s. 19 of the Solicitors (Amendment) Act 1994 – Restoration of name to the Roll of Solicitors – Misconduct – Lack of candour

Facts: -The applicant sought an order for the restoration of his name to the Roll of Solicitors. The applicant contended that the respondent had brought a number of complaints against the applicant against some of which he could not file any replies as he was undergoing treatment for cancer and the applicant's name was struck off from the Roll of Solicitors. The respondent refuted the applicant's contention and had argued that there were findings of misconduct by the Disciplinary Tribunal of the Law Society (‘Disciplinary Tribunal’), which led to the recommendation that the applicant's name should be struck off. The respondent further stated that the majority of cases pertaining to financial irregularities arose prior to his ill health and despite being warned by the Disciplinary Tribunal, the applicant had continued with the misappropriation of funds and took client monies for outlay.

Mr. Justice Kelly P. dismissed the application filed by the applicant. The Court found that there were 40 findings of misconduct against the applicant, which were made prior to his becoming ill, and despite those findings, the applicant continued to exhibit dishonesty and lack of candour in his profession. The Court held that the solicitor's profession was based on mutual trust and respect, and the applicant had intently made misrepresentations as an established solicitor of considerable experience and hence, brought ill repute to the profession.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 23rd day of January, 2017
Introduction
1

This is an application by the applicant (Mr. Walsh) to have his name restored to the Roll of Solicitors.

2

Although no statutory basis is referred to in the notice of motion it is clear that the matter falls to be dealt with pursuant to the provisions of s.10 of the Solicitors (Amendment) Act 1960 which was amended by s.19 of the Solicitors (Amendment) Act 1994.

3

In due course I will turn to a consideration of these statutory provisions but before doing so I set out the facts as deposed to on affidavit.

Mr. Walsh's grounding affidavit
4

In his affidavit sworn on 5th July, 2016 Mr. Walsh averred that he qualified as a solicitor and was admitted to the Roll of Solicitors in Michaelmas term 1982. From 1990 to 2012 he practised as the principal in his own firm in Mullingar, Co. Westmeath.

5

In July 2010 he suddenly became unwell and was diagnosed with advanced pancreatic cancer. He underwent a ‘Whipple's procedure’ and following that had chemotherapy and radiotherapy for six months.

6

The affidavit goes on:-

‘In early 2012 as I was still very poorly I was left with no alternative but to retire from practice. I handed back my Practising Certificate to the Law Society and delivered to them all my files and documents.

I had my office and client accounts closed and receipted showing nil balances and no deficit and I put in place run-off indemnity cover.

I further say that in my almost 30 years of practice up until my cancer diagnosis in 2010 I have never been in front of the Disciplinary Tribunal of the Law Society or had any sanctions imposed on me or my practice.

During the period of my illness the Society saw fit to bring before the Tribunal a number of complaints.

These complaints were subsequently brought before the then President of the High Court on 27th May, 2014 resulting in my name being struck off the Roll of Solicitors.

I will detail the complaints further in this affidavit but as a preliminary point wish to say that when these complaints were first made I was not well enough or capable of putting in a replying affidavit and therefore a prima facie case of misconduct was found and at no time thereafter was I afforded an opportunity to submit such an affidavit.’

7

Mr. Walsh exhibits a series of medical reports from Dr. David Fennelly a Consultant Medical Oncologist. These date from April 2011 to June 2016. They attest to Mr. Walsh's diagnosis of an acinar cell tumour of the pancreas, the carrying out of the ‘Whipple's procedure’ and his subsequent therapy. By April 2011 he was described as remaining well. Dr. Fennelly expressed the view that his diagnosis and treatment had caused considerable stress and concern and he had no doubt but that it had impacted on Mr. Walsh's ability to carry out his duties in an optimal fashion.

8

In June 2011 Dr. Fennelly wrote that Mr. Walsh was not then in a position to give instructions with respect to preparing a replying affidavit because he was completing his chemotherapy. In September 2012 Mr. Walsh was well with no evidence of recurrence of his medical problems. However, Dr. Fennelly pointed out that the long term prognosis for patients with pancreatic cancer is extremely poor.

9

In June 2016 Dr. Fennelly pointed out that the original surgery was carried out in July 2010 and that Mr. Walsh continued to do well from his first diagnosis. He was in complete remission. His physical examination as of then was unremarkable.

10

Mr. Walsh is still in remission and regards himself as being remarkably fortunate. In that regard he is no doubt correct.

11

The affidavit goes on to say that if he had been well he would have been able to deal with the complaints in a manner satisfactory to the Law Society and would have put forward his previous good record to support that assertion. He says that although he attempted to attend the Disciplinary Tribunal whenever required he was not very well either physically or mentally to deal with the proceedings and some determinations were made in his absence. He says that on a number of occasions he asked the Law Society to adjourn matters generally but it would not do so. He alleges that on one occasion a solicitor appearing for the Law Society objected to an adjournment because Mr. Walsh's condition was unlikely to improve and indicated that he might be dead by the adjourned date.

12

Mr. Walsh avers that, despite his illness, he at all times sought to fully cooperate with the Society in dealing with these complaints.

13

The affidavit then goes on to refer to matters which came before the then President of this Court on 27th May, 2014 on foot of reports and recommendations from the Disciplinary Tribunal. He says the following in respect of complaints bearing record number 2014 Nos. 37SA and 39SA:-

‘These matters refer to reports of investigating accountants from the Law Society, Jim O'Dowd and Mary Devereux. At the Tribunal I did not contest the contents of the reports but did point out that I had attended fully and dealt with the items of concern highlighted in the report. The Tribunal recommended as a sanction that I would only be permitted to practise as an assistant solicitor under supervision. This suspension sanction was appealed by the Law Society to President Kearns on 27th May, 2014.’

14

In respect of complaints bearing record numbers 2014 No. 36SA and 38SA Mr. Walsh says the following:-

‘This complaint relates to an alleged failure to honour an undertaking to ACC Bank to register a charge. I was not well enough to attend the Tribunal. The Tribunal imposed a suspension order. This was appealed by the Society. I understand that registration of the charge has now taken place.’

15

Insofar as another matter (4550/DT/04/12) concerning an alleged failure to pay a portion of a professional fee to a firm of solicitors following a file transfer, he says that the hearing took place in his absence and that the Disciplinary Tribunal recommended that he be struck off.

16

In respect of a complaint by the Bank of Ireland (2014 No. 7C SA) concerning a failure on his part to stamp a deed he alleges that the bank withdrew the complaint before the Tribunal but that it nonetheless proceeded to recommend a strike off of his name from the Roll. Insofar as the remaining two matters were concerned (2014 Nos. 40SA and 41SA), one alleged an overcharging of professional fees and he says the Tribunal recommended that he be struck off in respect of that. The last matter concerned a professional fee allegedly charged by him for extensive probate and administration work for an estate. He says that the Tribunal ruled that he was not entitled to charge any fee as he had witnessed the will and it recommended that he be struck off.

17

The affidavit continues:-

‘I say that before President Kearns I consented to the strike off and did not contest the Society's application. I did so because at that time I was still very pessimistic as to my health outcome and did not see myself being in a position to practise in the future.

I feel that President Kearns's accepted that I had tried my best in very difficult circumstances and he did not give the Society their costs for the day.’

18

The affidavit then deals with the position of Mr. Walsh's thirteen year old son and his anxiety to be able to make a financial contribution to his welfare. He then avers that he has not worked since he was diagnosed in 2010 and that his financial situation is now extremely poor. He gets a weekly disability payment of €197 and a monthly ex gratia payment of €500 from the Solicitors Benevolent Fund. Apart from that he avers that he has no other income and the little savings that he had were used up on his medical needs. In addition, his mortgage on his house is in arrears and the mortgagee...

To continue reading

Request your trial
1 cases
  • The Child and Family Agency -v- ER & JG
    • Ireland
    • District Court (Ireland)
    • 23 November 2017
    ...[2017] IEHC 25 THE DISTRICT COURT AN CHUIRT DUICHE DUBLIN METROPOLITAN DISTRICT CHILD & FAMILY AGENCY Applicant -and- E.R. AND J. G. Respondents And Guardian ad Litem Dr L. O’R 1. This is an Application for a Care Order pursuant to section 18(1) (b) and (c) of the Child Care Act 1991. This ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT