Supreme Court dismisses appeal where solicitor's repeated dishonesty prevents restoration to the roll under the Solicitors Acts.

[2001] IESC 13

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

267 & 281/99

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

AND IN THE MATTER OF THE SOLICITORS’ ACTS 1954 TO 1994

JUDGMENT delivered the 9th day of February 2001 by Keane C.J.

1. 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.

2. 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:-

“(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.

(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.

(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.”

3. 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.”

4. 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.

5. 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.

6. 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.

7. 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.”

8. 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 situation with which I was confronted and also because there was an

absence of records. The situation was also compounded by the fact that the deficits arose in the client account because

I had taken monies in a fashion that was grossly dishonest and compounded this dishonesty by failing to meet the issues

head on which were raised by the Society’s investigation. However, as stated above, the primary responsibility for the

delay and principal difficulty faced by the Society was due to my non co-operation over a protracted period of time and

by the fact that I deliberately concealed from the Society the true position in relation to my practice. I acknowledge that

the result of this was that the Society had to go to great lengths to conclude the investigation and incurred considerable

expense because of my lack of co-operation. However, the additional expenses were ultimately borne by me, your

deponent.”

9. On foot of a further petition brought at the same time, the High Court censured the solicitor and ordered him to pay £600 towards

the costs and expenses of the proceedings. That was as the result of his failing to furnish his client with an itemised bill of costs for

the purpose of taxation, delaying in placing a sum of £5000 on joint deposit receipt and returning the deposit receipt and delay in

handing over a sum of £6, 114.49 to his client.

10. A further complaint in relation to the solicitor came before the High Court on 29th March 1995. This related to a visit by a Mr.

Philip Von Der Recke to an office where Mr. Burke’s wife was practising as a solicitor on the 16th May 1994. Mr. Von Der Recke, who

was accompanied by his two brothers, met Mr. Burke on that occasion and said that the latter conducted himself as though he were

a solicitor and never indicated at any stage that he was not. That incident led to the issuing of injunction proceedings by the

Society, which were compromised by a consent entered into on the 25th March 1995 with Mr. Burke undertaking to the court that he

would not attend at or in any premises at which his wife was carrying on or might carry on in the future her practice as a solicitor. He

also made a contribution of £5,000 towards the costs of the plaintiff.

11. In one of the affidavits grounding this application, the solicitor said that he had paid to the Society in respect of his liabilities

arising out of their investigations a total sum of £143,866.74. He said that his ability to repay these amounts arose out of the sale of

a number of sites which he had purchased some years ago.

12. Twenty-nine affidavits were also filed in support of the solicitor’s application by solicitors practising in the Galway area. These

affidavits were all broadly to the same effect, i.e. reflecting the views of the deponents that the solicitor had paid a heavy price for

his previous misconduct and that they hoped he might be given another chance by having his name restored to the roll. Four solicitors

also practising in the area gave oral evidence to that effect at the hearing before the President and also said that, in their view, the

circumstances which had led to the order striking him off were not known to the general public or indeed to most members of the

solicitors’ profession and that his restoration to the roll would not adversely affect public confidence in the solicitors’ profession.

13. The applicant also said in one of the affidavits sworn by him that

“For reasons which are self-explanatory I do not seek a certificate which would enable me to have access to client or

office accounts which arise from my previous conduct, the nature of which I have endeavoured to set forth in the fullest

possible extent in this application. In the circumstances I would not consider it proper to seek a certificate which would

enable me to have control over financial matters at this juncture, nor would I expect the Society or this Honourable Court

to accede to such an application.”

14. Having heard the evidence to which I have referred and submissions from counsel, the learned President said:-

“I am satisfied having heard Mr. Moylan, Mr. Gavin, Mr. Molloy and Mr. Keane that in the particular circumstances of the

case the restoration of the applicant’s name to the roll would not adversely affect confidence in the solicitors’ profession

as a whole or in the administration of justice simply because the applicant’s conduct is now to a very large extent a thing

of the past in the area in which he practised and has now been forgotten.”

15. He went on, however, to say:

“I do not believe that the applicant is a fit and proper person to practise as a solicitor. I form that opinion based upon the

fact that neither the applicant himself nor the reputable solicitors who he has called to support his application consider

that he is a proper person to exercise control over money which may be entrusted to him by clients. I do not lose sight of

the fact that the applicant seeks only a limited certificate which will not involve his handling clients money or being

responsible for it. However, I believe that I accurately summarise the position by saying that neither he nor any of his

witnesses consider that it would be safe for him to be in the position of controlling clients funds. In these circumstances,

how can it be said that he is a ‘fit and proper person to practise as a solicitor’? I draw attention to the fact that the

subsection does not in any way differentiate between a solicitor holding a full certificate and a solicitor holding a limited

certificate. In my view it is not open to the court to draw any such distinction. Either the applicant is a fit and proper

person to be a practising solicitor or he is not. If he is then it is open to the court to make the order sought. If he is not a

fit and proper person to practise as a solicitor then it is not.

“I am satisfied beyond any doubt that there is no evidence upon which I can conclude that he is a fit and proper person

to practise as a solicitor. On the contrary, all the evidence shows that he is not in as much as he is not fit to manage

clients money and therefore I conclude that it is not open to me to make an order under subsection 4.”

16. In this court, Mr. Colm Allen S.C. on behalf of the applicant submitted that this was in law an erroneous finding by the President.

He said that subsection (4) expressly empowered the High Court to restore a solicitor’s name to the roll, “either conditionally or

unconditionally”. Accordingly, the mere fact that the applicant was prepared to submit to a condition that he should not handle

money could not of itself have as its consequence a finding that he was not a fit and proper person to practise as a solicitor.

17. There can be no doubt that subsection (4) envisages that a solicitor may be restored to the roll, although the circumstances

which gave rise to his being struck off involved an act or acts of dishonesty on his part. But it is also clear that, before the court can

accede to such an application, it must be satisfied that the two preconditions imposed by the subsection are met and that the onus

of so satisfying the court is on the applicant. It is also clear that both these preconditions must be met where, as here, the applicant

is applying for a conditional certificate only.

18. As I have noted, subsection (4) did not appear in section 10 of the 1960 Act as originally enacted. It was inserted for the first

time by the 1994 Act. In determining how subsection (4) should be applied in individual cases such as the present, it is important to

bear in mind that the Oireachtas, in cases which are within the subsection, thought it necessary to make special provision for such

cases and, in particular, to require that the two specific preconditions be met before the solicitor’s name is restored.

19. A member of either branch of the legal profession enjoys rights and privileges in representing and advising members of the public

denied to others. The public are, accordingly, entitled to repose a high degree of trust in both barristers and solicitors in the conduct

of their respective professions. Unlike barristers, solicitors are regularly entrusted with the custody of monies belonging to their clients

and, if public confidence in the solicitors’ profession is to be maintained, any abuse of that trust must inevitably have serious

consequences for the solicitor concerned. Viewed in that context, the range of cases in which a solicitor who has been struck off

because of dishonesty can properly be restored to the register pursuant to subsection (4) is, of necessity, significantly limited. In a

case where the acts of dishonesty appear to have been wholly out of character and were committed when the solicitor was under

severe pressures of some kind, the exercise of the discretion vested in the court in his or her favour may be justifiable. The fact, if it

be the fact, that in his or her subsequent career, the solicitor had been entrusted with positions of trust and responsibility without

any further lapses would be an additional factor in enabling the court to exercise the jurisdiction in his or her favour. However, it

would be inappropriate to attempt an exhaustive definition of the circumstances in which a solicitor might properly be restored to the

rolls in cases to which subsection (4) apply: it is sufficient to emphasise again that the category of cases in which re-admission to

the profession is permissible will inevitably be limited. That this is the approach which should be adopted is, I think, borne out by the

authorities from other jurisdictions which were cited in the course of argument: see the observations of Lord Donaldson MR in In the

Matter of a Solicitor No. 5 of 1990 and In the Matter of the Solicitors Act 1974 (unreported: judgment delivered Friday, 27th April

1990) and of the majority of the High Court of Australia in Ex-parte Lenehan (1948) 77 CLR 403.

20. The issue that arises on this appeal is as to whether, in the light of these principles, the learned President was entitled to refuse

the present application on the ground that the solicitor had not satisfied him that he was a fit and proper person to practise as a

solicitor. I have no doubt that he was. It must, regrettably, be pointed out that the conduct which ultimately led to the applicant

being struck off was not in any sense an isolated act explicable, if not justifiable, because of special circumstances. He had narrowly

escaped being struck off for similar conduct on a previous occasion and, even after his ultimate removal from the roll, held himself out

as being a solicitor. While it is to his credit that substantial repayments have been made by him, there is no indication that in the

period which has elapsed since he was struck off in 1991 he has secured any employment in any position of trust or responsibility.

21. The fact that a solicitor applying for re-admission in a case to which subsection (4) apply is prepared to submit to a condition

that he will not handle any money would not, of itself, mean that he was not a “fit and proper person to practise as a solicitor”. In

the circumstances of the present case, however, it is further confirmation of the serious and repeated nature of the acts of

dishonesty which led to the original striking off.

22. As I have already mentioned a number of solicitors gave evidence by affidavit or orally in the hearing before the President in

support of the application. However, the issue as to whether the applicant was a “fit and proper person to practise as a solicitor” was

solely a matter for the learned President, to be decided by him in all the circumstances of the particular case.

23. Some reliance was also placed on an observation by Hamilton P. when making the order striking off the applicant in 1991 that this

was “not a life sentence”. That comment was, however, made at a time when subsection (4) had not been enacted. In any event,

even in cases to which subsection (4) is applicable, striking off is not necessarily a “life sentence” since in the limited category of

cases to which I have referred, of which it has not been established that this is one, restoration to the rolls is still possible.

24. I would dismiss the appeal and affirm the order of the learned President. I would make no order on the notice to vary.