High Court: Solicitor fails to overturn findings of professional misconduct by the Solicitors Disciplinary Tribunal
A solicitor who was found guilty of professional misconduct by the Solicitors Disciplinary Tribunal has had her appeal dismissed in the High Court.
The principal finding of misconduct was in relation to the transfer of €259,000 from a client account in breach of Solicitors Accounts Regulations 2001, which the solicitor argued was a settlement agreed with the client’s agent.
Determining that the finding of professional misconduct was made out, Mr Justice Kelly, President of the High Court said that he would deal with the question of penalty at a later hearing. Regarding the penalty, the Law Society of Ireland has sought for the solicitor to be struck off, arguing that the SDT was too lenient in recommending that she be permitted to practise only as an assistant solicitor.
Ms Helen Lucey was admitted and enrolled as a solicitor in 1975, practising as the principal of Marshall & Macaulay in Listowel, Co Kerry. As a result of a 10 day hearing before the SDT throughout 2013-15, it recommended that Ms Lucey be permitted to practise only as an assistant solicitor in the employment and under the direct control and supervision of another solicitor of at least 10 years standing; that she pay €15,000 to the Compensation Fund; and pay half the costs of the Law Society.
At all times the Society submitted that the appropriate penalty was being struck from the Roll of Solicitors, making restitution in full, and pay all of the costs of the Law Society.
Two sets of proceedings before the High Court
Ms Lucey sought to appeal the findings of professional misconduct made against her by the SDT.
Also before the Court, the Law Society sought confirmation of the findings of the SDT and a penalty greater than that recommended by the SDT. The Law Society sought to have Ms Lucey struck off the Roll of Solicitors and make full restitution.
Justice Kelly explained that his judgment was confined to the question of guilt, and that the question of penalty would be dealt with at a later hearing.
Justice Kelly said that it was important to point out that there were no allegations of dishonesty against Ms Lucey, whatever her other perceived shortcomings.
The judge noted that there were two separate referrals of complaints to the SDT, but the principal claim arose following an accountant’s report prepared on foot of an inspection of Ms Lucey’s practice, which identified a €259,000 transaction from the client account of a deceased woman to the office account of Ms Lucey without the express instructions of the beneficiary of the estate, Ms Walshe. Ms Lucey averred that this was done on the instruction of Ms Walshe’s agent, Mr Ross, and that this was authorised in writing.
Ms Lucey claimed that the €259,000 represented a settlement between herself and Ms Walshe in respect of proceedings brought by Ms Walshe against Ms Lucey which Ms Lucey intended to counterclaim against Ms Walshe and the Law Society for €500,000. Justice Kelly accepted that there may well have been no basis for the initial claims against Ms Lucey, and that they undoubtedly caused distress and cost to Ms Lucey – but Ms Lucey never issued any proceedings against the Law Society for the other half of her perceived counterclaim for damages. Furthermore, Justice Kelly said that “the settlement negotiations took place… with the dubious figure of Mr Ross sitting in the negotiating seat. [Ms Lucey] made no contemporaneous note of the agreement whatsoever. Given that Ms. Lucey indicated that she was wary of him it is more than surprising that in dealing with this “dodgy character” she departed from her normal practice of most detailed attendance notes being prepared”.
Justice Kelly said that a conflict of interest arose in Ms Lucey deducting monies from the proceeds of sale in favour of herself on foot of her purported counterclaim, and that if she sought to satisfy such claim out of those moneys that it should have been done in a proper and transparent way. Justice Kelly said that viewing Ms Walshe as Ms Lucey’s client, for whom Ms Lucy was holding moneys in her capacity as Ms Walshe’s solicitor was supported by statutory provisions and confirmed in case law (set out in paras 126-132 of the judgment).
Pursuant to the finding that, regardless of Ms Walshe instructing A&L Goodbody, there was a solicitor-client relationship which continued with Ms Lucey, and therefore Ms Lucey was bound by the terms of the Solicitors Accounts Regulations 2001 which set out the circumstances in which a solicitor may withdraw funds from a client account. Justice Kelly was satisfied that none of those circumstances were applicable here, and that the withdrawal was a breach having regard to paragraph 8(4) of the Solicitors Accounts Regulations 2001.
Justice Kelly said that Ms Lucey was in clear breach of her obligations to Ms Walshe, and held that the SDT “was amply justified in coming to the conclusions which it did”.
In relation to six further complaints, Justice Kelly upheld the SDT’s findings of professional misconduct for four of the claims, but allowed Ms Lucey’s appeals in respect of two of them.
Dismissing Ms Lucey’s main appeal, Justice Kelly said that he would hear the question of penalty at a later date.
- by Seosamh Gráinséir for Irish Legal News
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