Solicitor required to pay compensation for unreasonable and unprofessional conduct
The Law Society of Ireland sought and obtained an order for various sanctions following an incident in which a solicitor, Michael O’Sullivan, withheld money from a client, Mr James Nolan, and failed to furnish a Bill of Costs explaining his fee, a breakdown of money to be returned to Mr Nolan, and a statement of special damages.
The Law Society had sought orders pursuant to s. 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 that Michael O’Sullivan not be permitted to practice as a sole practitioner or in partnership, but only as an assistant solicitor under supervision, that he pay €10,000 to the Compensation Fund of the Law Society and €6,774.51 to his former client James Nolan, and that he pay the Law Society’s costs.
The orders were sought following a complaint received by the Law Society from Mr Nolan, who had been represented by Mr O’Sullivan in a personal injury case, which resulted in settlement for €100,000 damages and costs.
The Court noted that on 14th March 2004, Mr Nolan had sought a detailed breakdown of a €15,000 fee, which he considered excessive and unfair as the defendant had agreed to pay his costs.
He also initially alleged that he had felt pressured to settle the case, and although he did not pursue this issue, he did not retract the claim, as requested by Mr O’Sullivan.
Correspondence between Mr Nolan and Mr O’Sullivan resulted in Mr O’Sullivan returning €48,689, but failing to provide a breakdown of fees or special damages. Mr Nolan offered €5,000 towards Mr O’Sullivan’s costs, which were dismissed as completely unrealistic.
Mr Nolan then requested assistance from the Law Society, who informed Mr O’Sullivan of the complaint, highlighting at his request that the complaints fell under sections 8, 9 and 68(3), (4), (5) and (6) of the Solicitor’s Amendment Act 1994.
During correspondence with the Law Society, Mr O’Sullivan claimed that his queries as to the complaint had not been sufficiently addressed, and that therefore he was not required to respond.
He also furnished Mr Nolan with a Bill of Costs, which he then reduced from €45,129.11, to €44,939.11.
He further requested compensation for the allegations made by Mr Nolan, and stated that as a result of Mr Nolan’s allegations, he could no longer represent him.
In July 2004 Ms Kirwan informed Mr O’Sullivan on behalf of the Law Society that the case would be referred to the Complaints and Client Relations Committee.
The Committee met several times between 2004 and 2006, and in February 2005 served a notice pursuant to s. 10 of the Solicitors (Amendment) Act 1994, requiring him within ten days to deliver all documents in his possession, under his control or within the procurement of his firm in connection with the matters relating to Mr Nolan’s complaints.
Mr O’Sullivan delivered the file in August 2005, and the Law Society instructed Behan and Associates to prepare a Bill of Costs, which settled on a professional fee of €19,134.69, together with a further sum of €700 agreed in respect of postage.
Mr O’Sullivan was informed by the Law Society of this settlement and was informed that the matter would be reviewed by the Complaints and Clients Relations Committee at its next meeting on 20th September, 2006.
This meeting, which Mr O’Sullivan did not attend, determined that there was prima facie evidence of misconduct which would warrant an application to the Disciplinary Tribunal or a sworn inquiry.
Mr O’Sullivan sought an order of prohibition against the Disciplinary Tribunal and the Law Society in 2009, but was refused.
In 2013, the Tribunal determined that there was a prima facie case of misconduct against Mr O’Sullivan sufficient to warrant an inquiry by the Tribunal in respect of eleven matters.
In 2015 the Disciplinary Tribunal found that Mr O’Sullivan had unreasonably demanded payment of an excessive solicitor/client fee of €15,000 plus VAT from the complainant, that he had unreasonably failed to give an explanation for the fee, had failed to respond in an appropriate and timely manner to the request for a breakdown of the outlay for which Mr Nolan was entitled to be reimbursed, failed to provide a schedule of special damages, deducted money payable to Mr Nolan without his consent, and failed to respond in a timely manner to the Society’s request for Mr Nolan’s file.
The Tribunal then recommended that Mr O’Sullivan only be permitted to practice as an assistant solicitor, that he pay €10,000 to the compensation fund, €6,774.51 as restitution to Mr Nolan, and the costs of the Law Society.
The High Court noted that the range of sanctions available to the Disciplinary Tribunal was considered in Bolton v. Law Society 2 All E.R. 486 at 492, where he found that there may be a punitive element, but that sanctions should be more focussed on deterrence, and on preserving the reputation of the solicitor profession as one that can be trusted to the ends of the earth.
t was also stated in Bolton that if a solicitor fails to discharge his duties with complete integrity, probity and trustworthiness, he/she must expect severe sanctions to be imposed by the Solicitor’s Disciplinary Tribunal.
These principles had been adopted in Ireland in The Law Society v Carroll & Anor, Unreported Supreme Court, 20th May 2009.
The High Court observed that Mr O’Sullivan had acted in an unreasonable and unprofessional way, that he had engaged in hostile and intimidating correspondence with Mr Nolan, and that he had no insight into his unfair and unreasonable behaviour.
He therefore required supervision, in order to ensure professional standards were upheld.
It was noted that Mr O’Sullivan had, in 2015, sought various declarations that ss. 3,6,7,8 and 15 of the Solicitors (Amendment) Act 1960 were invalid having regard to the Constitution and Article 6 of the ECHR.
Declarations were also sought that the order of the Disciplinary Tribunal, in this case, was void and invalid as a result of this unconstitutionality.
The High Court was satisfied that there was no basis upon which to adjourn or strike out the proceedings.
The Court therefore directed that the sanctions be applied to Mr O’Sullivan.