In the matter of Joseph Traynor, solicitor, formerly practising as Traynor & Company, Solicitors, 86 Clanbrassil Street, Dundalk, Co Louth, and in the matter of the Solicitors Acts 1954-2008 [5554/DT124/09 and High Court record no 2010 no 57 SA]

Law Society of Ireland (applicant)

Joseph Traynor (respondent solicitor)

On 18 March 2010, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he:

1) Failed to honour an undertaking given to the complainant’s clients, Start Mortgages Limited, in respect of his named clients, involving property at Rathcore, Enfield, Co Meath, in the solicitor’s undertaking dated 4 March 2008, whereby he undertook to do the following:

a) To ensure that the mortgage ranked as the first legal mortgage/charge on the property,

b) As soon as practicable, to stamp and register the mortgage in the appropriate registry so as to ensure the lender obtained the first legal mortgage/charge on the property and, expeditiously, as soon as practicable thereafter, to lodge the following with the lender:

i) All deeds and documents to the property, stamped and registered as appropriate, including if applicable the assignment of the life policy, stamped collateral to the mortgage,

ii) The original mortgage (with certificate of charge endorsed thereon under rule 156 of the Land Registry Rules1972, if Land Registry title),

iii) The Land Registry certificate or, if not issued, an up-to-date certified copy folio of the property showing the mortgage registered as a burden thereon, and

iv) Certificate of title in the Law Society’s standard form.

2) Failed to adequately or at all respond to the complainant’s correspondence, in particular letters dated 31 August 2008, 28 October 2008, 21 November 2008 and 18 December 2008 respectively.

The tribunal directed:

a) That the respondent solicitor is not a fit person to be a member of the solicitors’ profession,

b) That the name of the respondent solicitor be struck off the Roll of Solicitors,

c) That the respondent solicitor pay the sum of €50,000 as restitution to Start Mortgages Limited,

d) That the respondent solicitor pay the whole of the costs of the Law Society of Ireland, including witness expenses, to be taxed by a taxing master of the High Court in default of agreement.

The tribunal directed that the matter be referred forward to the High Court and, on 5 July 2010, the President of the High Court ordered:

1) That the name of the respondent solicitor be struck from the Roll of Solicitors,

2) That the respondent solicitor pay the sum of €50,000 as restitution to Start Mortgages Limited,

3) That the applicant forward the papers in respect of this application to the Director of Public Prosecutions,

4) That the respondent solicitor surrender his passport forthwith to An Garda Síochána,

5) That the respondent solicitor pay the applicant the costs of the High Court proceedings, together with the costs of the disciplinary tribunal proceedings, to include witness expenses, to be taxed in default of agreement.

In the matter of Michael J Murphy, a solicitor formerly practising as MJ Murphy & Co, Solicitors, 25 Lower Salthill, Galway, Co Galway, and in the matter of the Solicitors Acts 1954-2008 [4803/DT119/08 and High Court record no 2009/95 SA]

Michael J Murphy (respondent solicitor)

Law Society of Ireland (applicant)

On 1 September 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he:

1) Deducted an improper solicitor client fee of €15,000 from a named client’s settlement of €30,000, which represents a solicitor client fee of 50%, when he also received party-and-party costs of €7,978.26,

2) Failed to record the receipt of the above amount of €7,978.26 in the books of account,

3) Failed to lodge the above amount of €7,978.26 to client account or to office account,

4) Failed to maintain a copy of the party-and-party bill of costs or the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

5) Misapplied the above party-and-party costs of €7,978.26 by lodging same to an account in his own name in a named credit union,

6) Deducted an improper solicitor client fee of €9,500 from a named client’s settlement of €22,500, which represents a solicitor client fee of 42.2%, when he also received party-and-party costs of €3,500,

7) Failed to record the receipt of the above amount of €3,500 in the books of account,

8) Failed to lodge the above amount of €3,500 to client account or to office account,

9) Failed to maintain a copy of the party-and party-bill of costs or the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

10) Deducted an improper solicitor client fee of €2,000 from a named client’s settlement of €5,000, which represents a solicitor client fee of 40%, when he also received party-and-party costs of €928.41,

11) Failed to record the receipt of the above amount of €928.41 in the books of account,

12) Failed to lodge the above amount of €928.41 to client account or to office account,

13) Failed to maintain a copy of the party-and-party bill of costs or the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

14) Deducted an improper solicitor client fee of €8,515.44 from a named client’s settlement of €22,515.44, which represents a solicitor client fee of 37.8%, when he also received party-and-party costs of €3,000,

15) Failed to record the receipt of the above amount of €3,000 in the books of account,

16) Failed to lodge the above amount of €3,000 to client account or to office account,

17) Misapplied the above party-and-party costs of €3,000 by lodging same to an account in his own name in a named credit union,

18) Failed to maintain a copy of the party-and-party bill of costs or the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

19) Deducted an improper solicitor client fee of €15,000 from a named client’s settlement of €40,000, which represents a solicitor client fee of 37.5%, when he also received party-and-party costs of €7,050,

20) Failed to record the receipt of the above amount of €7,050 in the books of account,

21) Failed to maintain a copy of the party-and-party bill of costs or the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

22) Deducted an improper solicitor client fee of €7,500 from a named client’s settlement of €20,000, which represents a solicitor client fee of 37.5%, when he also received party-and-party costs of €6,335.50,

23) Failed to record the receipt of the above amount of €6,335.50 in the books of account,

24) Failed to lodge the above €6,335.50 to client account or to office account,

25) Misapplied the above party-and-party costs of €6,335.50 by lodging same to an account in his own name in a named credit union,

26) Deducted an improper solicitor client fee of €5,699.14 from a named client’s settlement of €15,769.14, which represents a solicitor client fee of 36.1%, when he also received party-and-party costs of €5,886.32,

27) Failed to record the above €5,886.32 in the books of account,

28) Failed to lodge the above €5,886.32 to client account or to office account,

29) Failed to maintain the letter received enclosing the party-and-party costs cheque on the client’s file in the case of a named client,

30) Misapplied the above party-and-party costs of €5,886.32 by lodging same to an account in his own name in a named credit union,

31) Deducted an improper solicitor client fee of IR£3,500 from a named client’s settlement of IR£13,500, which represents a solicitor client fee of 25.9%, when he also received party-and-party costs of €3,850,

32) Deducted an improper solicitor client fee of €2,500 from a named client’s settlement of €10,000, which represents a solicitor client fee of 25%, when he also received party-and-party costs of €3,377.40,

33) Failed to record the receipt of the above €3,377.40 in the books of account,

34) Failed to lodge the above €3,377.40 to client account or to office account,

35) Failed to maintain a copy of the party-and-party bill or the letter received enclosing the party-and-party cheque on the client’s file in the case of a named client,

36) Misapplied the above party-and-party costs of €3,377.40 by lodging same to an account in his own name in a named credit union,

37) Deducted an improper solicitor client fee of €5,000 from a named client’s settlement of €20,000, which represents a solicitor client fee of 25%, when he also received party-and-party costs of €4,755.52,

38) Deducted an improper solicitor client fee of €3,000 from a named client’s settlement of €13,301, which represents a solicitor client fee of 22.5%, when he also received party-and-party costs of €6,620.13,

39) Deducted an improper solicitor client fee of €3,500 from a named client’s settlement of €16,500, which represents a solicitor client fee of 21.2%, when he also received party-and-party costs of €3,907.41,

40) Deducted an improper solicitor client fee of €20,000 from a named client’s settlement of €110,000, which represents a solicitor client fee of 18.2%, when he also received party-and-party costs of €35,888.79 in two instalments of €25,000 and €10,888.79,

41) Failed to record the receipt of the above instalment of party-and-party costs of €25,000 in the books of account,

42) Failed to lodge the above instalment of party-and-party costs of €25,000 to client account or to office account,

43) Failed to maintain a copy of the party-and-party bill or the letters received enclosing the party-and-party cheques on the client’s file in the case of a named client,

44) Misapplied the above party-and-party costs instalment of €25,000 by lodging same to an account in his own name in a named credit union,

45) Deducted an improper solicitor client fee of €5,000 from a named client’s settlement of €30,000, which represents a solicitor client fee of 16.67%, when he also received party-and-party costs of €20,378.33,

46) Failed to record the receipt of the above €20,378.33 in the books of account,

47) Failed to lodge the above €20,378.33 to client account or to office account,

48) Misapplied the above party-and-party costs of €20,378.33 by lodging same to an account in his own name in a named credit union,

49) Failed to record in the books of account the receipt of party-and-party costs of €3,194.66 received in the case of a named client,

50) Failed to lodge the party-and-party costs of €3,194.66 received in the case of a named client to client account or to office account,

51) Failed to maintain the letter received enclosing the party-and-party costs cheque of €3,194.66 on the client’s file in the case of a named client,

52) Failed to record in the books of account the receipt of party-and-party costs of €5,717.26 received in the case of a named client,

53) Failed to lodge the party-and-party costs of €5,717.26 received in the case of a named client to client account or to office account,

54) Failed to maintain the letter received enclosing the party-and-party costs cheque of €5,717.26 on the client’s file in the case of a named client,

55) Misapplied the above party-and-party costs of €5,717.26 by lodging same to an account in his own name in a named credit union,

56) Left the sum of €2,541.00, received to pay counsel in the case of a named client, in office account between October 2003 and June 2004,

57) Failed to record in the books of account the receipt of party-and-party costs of €8,384.77 received in the case of a named client,

58) Failed to lodge the party-and-party costs of €8,384.77 received in the case of a named client to client account or to office account,

59) Failed to maintain the letter received enclosing the party-and-party costs cheque of €8,384.77 on the client’s file in the case of a named client,

60) Misapplied the above party-and-party costs of €8,384.77 by lodging same to an account in his own name in a named credit union,

61) Failed to record in the books of account the receipt of party-and-party costs of €3,957.93 received in the case of a named client,

62) Failed to lodge the party-and-party costs of €3,957.93 received in the case of a named client to client account or to office account,

63) Failed to maintain the letter received enclosing the party-and-party costs cheque of €3,957.93 on the client’s file in the case of a named client,

64) Failed to record in the books of account the receipt of party-and-party costs of €3,591.95 received in the case of a named client,

65) Failed to lodge the party-and-party costs of €3,591.95 received in the case of a named client to client account or to office account,

66) Failed to maintain the party-and-party bill of costs and the letter received enclosing the party-and-party costs cheque of €3,591.95 on the client’s file in the case of a named client,

67) Failed to record in the books of account the receipt of party-and-party costs of €17,872.80 received in the case of a named client,

68) Failed to lodge the party-and-party costs of €17,872.80 received in the case of a named client to client account or to office account,

69) Failed to maintain the letter received enclosing the party-and-party costs cheque of €17,872.80 on the client’s file in the case of a named client,

70) Misapplied the above party-and-party costs of €17,872.80 by lodging same to an account in his own name in a named credit union,

71) Delayed in paying €1,875 to counsel from June 2003 to February 2005 in the case of a named client,

72) Untruthfully stated during the investigation that the party-and-party costs cheques that had not been lodged to client or office accounts and had not been recorded in the books of account had all been cashed “across the counter” and that they were not lodged to any account,

73) Drew costs from client account by means of cheques payable to Bank of Ireland in the sums of €250 and €2,000,

74) Deducted €315.99 for an itemised list of ‘specials’ from a named client’s settlement and subsequently misapplied the €315.99 to office account,

75) Informed the barrister in a named client’s case that that the claim had been settled for €5,000 when it had actually been settled for €7,500,

76) Deducted €18,000 from a named client’s settlement of €100,000 and lodged same to office account after the client had been informed that €8,000 of the deduction was for ‘specials’,

77) Drew €6,112.50, being part of a solicitor client fee of €8,000 in the case of a named client, from client account by means of a cheque payable to Bank of Ireland,

78) Failed to record the receipt of the €6,112.50 as a fee in the books of account in the case of a named client,

79) Deducted an improper solicitor client fee of €8,000 from a named client’s settlement of €33,000, which represents a solicitor client fee of 24.24%, when he was also entitled to charge party-and-party costs,

80) Misused €417 of clients’ money when he drew €662 from client account and the clients’ ledger account of a named client by means of a cheque payable to Galway City Council for his (the respondent solicitor’s) domestic refuse charges,

81) Delayed in paying the stamp duty of €12,050 in the case of a named client,

82) Failed to fully comply with section 68(6) of the Solicitors (Amendment) Act 1994 in respect of 36 clients’ files examined,

83) Deducted improper solicitor client fees ranging from 14% to 47.21% and ranging from €2,000 to €63,608 of the client’s settlements in up to 16 other cases documented in work papers provided by the reporting accountant,

84) Misused clients’ money when he caused debit balances on clients’ ledger accounts in his own name,

85) Failed to provide documentation, prior to his referral to the disciplinary tribunal, to enable the following amounts credited to his own accounts in the clients’ ledger to be verified: €28,498.82 on 7 March 2002; €24,760 on 9 April 2002; €10,204.82 on 13 June 2002; €7,000 on 14 June 2002; €17,478.62 on 20 June 2002; €10,000 on 28 June 2002; €21,254.84 on 12 July 2002; €24,660 on 29 January 2003; and €25,000 on 1 December 2004,

86) Failed to identify or provide documentation, prior to his referral to the disciplinary tribunal, to enable the following amounts lodged to his account in a named credit union to be verified:

• 16 July 2002 – €5,000,
• 5 June 2003 – €17,578.99,
• 1 July 2003 – €7,800,
• 1 August 2003 – €2,907,
• 13 April 2004 – €2,461.80,
• 24 April 2004 – €13,519.75,
• 21 May 2004 – €5,000,
• 6 August 2004 – €4,026.27,
• 6 August 2004 – €4,000,
• 17 August 2004 – €11,825.60,
• 24 August 2004 – €3,142.24,
• 27 August 2004 – €19,422.55,
• 7 September 2004 – €27,583.25,
• 7 September 2004 – €6,300.42,
• 5 October 2004 – €3,793.35,
• 17 November 2004 – €3,800,
• Total – €138,161,

87) Misled the Revenue by excluding solicitor client fees of €459,000 from income in his voluntary disclosure and informing the Revenue, through his representatives, that solicitor client fees of €459,000 were obtained in breach of the regulations and would be paid back to the clients, and then failed to repay the full €459,000 to the clients prior to his referral to the disciplinary tribunal,

88) Preferred 12 former clients by refunding them solicitor client fees totalling €83,545.95 plus interest, as per a letter dated 22 July 2008 from his legal representative, without explaining why these 12 clients were preferred and did not explain why any of the remainder of the €459,000 was not refunded,

89) Failed to refund all of the solicitor client fees to the clients as directed by the Regulation of Practice Committee at its meeting on 6 April 2006 prior to his referral to the disciplinary tribunal,

90) Failed to provide or failed to ensure, prior to his referral to the disciplinary tribunal, that the explanation required by the Regulation of Practice Committee was provided concerning the circumstances of an undertaking to Bank of Ireland over the sale proceeds of a house in a named location, as requested at the May 2006 meeting of the Regulation of Practice Committee.

The tribunal recommended that:

a) The respondent solicitor was not a fit person to be a member of the solicitors’ profession and that the name of the respondent solicitor be struck off the Roll of Solicitors,

b) The respondent solicitor pay the whole of the costs of the Society, including witness expenses, to be taxed by a taxing master of the High Court in default of agreement.

On 14 June 2010, the President of the High Court ordered:

1) That the respondent solicitor is not a fit person to be a member of the solicitors’ profession and the name of the respondent solicitor be struck off the Roll of Solicitors,

2) That the respondent solicitor shall pay the whole of the costs of the Society, including witness expenses before the Solicitors Disciplinary Tribunal, to be taxed by a taxing master of the High Court in default of agreement;

3) An order for the costs of the proceedings in the High Court to be taxed by a taxing master of the High Court, in default of agreement.

Subsequently, the respondent solicitor appealed to the Supreme Court against the decision of the President of the High Court.

In the matter of Desmond O’Brien, solicitor, Cregg, Lahinch, Co Clare, and in the matter of the Solicitors Acts 1954 to 2008 [4952/DT58/09 and High Court record 2010 no 44SA)

Law Society of Ireland

(applicant)

Desmond O’Brien

(respondent solicitor)

On 27 April 2010, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he:

a) In April 2006, misappropriated €31,900 of clients’ monies to purchase a motor car.

b) In April 2006, misappropriated €6,000 of clients’ monies by means of a client account cheque payable to Bank of Ireland, which he used to purchase a bank draft payable to his wife, which was then lodged in their joint account in Bank of Ireland.

c) In May 2005, misappropriated €9,500 of clients’ money by means of a client account cheque payable to Bank of Ireland, which he used to purchase a bank draft payable to his wife, which was then lodged in their joint account in Bank of Ireland.

d) In February 2006, misappropriated €5,200 of clients’ money, which he then put into his credit card account.

e) In September 2006, misappropriated €21,500 of clients’ money, which, according to the bank, was lodged to an account in his own name in AIB.

f) Caused or allowed a possible underpayment of CGT in the case of a named client arising from an alteration in the computation by the solicitor.

g) Deducted costs from the estate of a named deceased, in breach of the regulations, without issuing a bill of costs, and the amount involved was €2,178.

h) In February 2006, misappropriated €3,224 of clients’ money, which he used to pay into his accounts in GE Money, Bank of Ireland mortgages, and into a Bank of Ireland loan account.

i) Deprived the elderly beneficiary of the estate of a named deceased of her money for the three years up to when he ceased practice, having misappropriated some of the estate money for his own personal benefit.

j) In February 2006, misappropriated €3,000 of clients’ money, with which he purchased an international bank draft payable to Bank Nationale de Paris and caused the cheque to be debited to the clients’ ledger account of a named client, described as ‘Bank of Ireland inheritance tax’.

k) On 3 July 2006, issued a client account cheque for €14,000 payable to the Revenue Commissioners, which was used with two other client account cheques to pay the stamp duty and penalty on a deed relating to a purchase by a named client that was completed in July 2004. He caused the cheque to be debited to the aforementioned named client’s ledger account.

l) Paid the second part of the stamp duty and penalty on a named client’s deed with a client account cheque for €3,684, which he caused to be debited to the client’s ledger account of another named client and which he caused to be described in the books of account as ‘Revenue Commissioners CGT’.

m) The third part of the stamp duty and penalty on a named client’s deed he paid with an AIB bank draft for €11,141, which, more than 18 months earlier, on 16 January 2005, the solicitor had drawn from a named client’s client account by means of a client account cheque payable to ‘Allied Irish Banks for Revenue’ and which the solicitor caused to be debited to the clients’ ledger account of a named client.

n) In February 2006, misappropriated €663 of clients’ money to pay his electricity bill.

o) In February 2006, misappropriated €417 of client’s money to pay his wife’s car insurance.

p) In February 2006, paid €665 to a named plant hire company and €283.22 to a named refuse and recycling company. These payments were debited to the client ledger account of a named deceased and there was nothing in that client’s file to support the payments.

q) On 17 November 2006, misappropriated €700 of clients’ money to pay his gas bill.

r) In February 2007, misappropriated clients’ money of €2,727.50 to pay his family’s VHI bill. The €2,727.50 was misappropriated as part of a larger amount of clients’ money, the balance of which was misappropriated as part of teeming and lading.

s) Misappropriated €4,250 of client’s money, which he lodged into his credit card account in March 2008.

t) In March 2008, misappropriated €2,000 of clients’ money, which he paid into a mortgage account in Bank of Ireland held in his own and his wife’s names.

u) In February 2008, misappropriated €5,000 of clients’ money, which he lodged to his credit card account.

v) In July 2006, misappropriated €4,800 of clients’ money, which he lodged to his credit card account.

w) In September 2005, misappropriated €5,000 of clients’ money, which he lodged to his credit card account.

x) On 17 August 2005, issued a client account cheque for €15,700 payable to a named client. The returned paid cheque shows that it was endorsed on the back with the name of a person bearing the same surname as the named client. The solicitor caused the cheque to be wrongly debited to the estate account in the clients’ ledger of a named client, described in the books as a named deceased’s bequest, although there was no such beneficiary in that estate. The books of account, however, show that the solicitor acted for the first-named client in the estate of a named deceased.

y) On 22 September 2006, misappropriated €13,250 of clients’ money, which he used to make a payment of €6,000 to a bank in France, €3,500 into his credit card account, and the balance of €3,750 was lodged into a joint account in his and his wife’s name.

z) Caused the bookkeeper/accountant to make false and misleading entries in the books of account.

The tribunal recommended that the matter be sent forward to the President of the High Court and, on 14 June 2010, the President of the High Court made an order that the name of the respondent solicitor shall be struck from the Roll of Solicitors and that the Law Society do recover the costs of the proceedings before the High Court and the costs of the proceedings before the Solicitors Disciplinary Tribunal as against the respondent when taxed or ascertained.

In the matter of Eamon P Comiskey, a solicitor previously practising at Ballycarnan, Portlaoise, Co Laois, and in the matter of the Solicitors Acts 1954-2008 [7337/DT23/09 and High Court 2009 no 102SA]

Law Society of Ireland (applicant)

Eamon P Comiskey (respondent solicitor)

On 17 September 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he failed to comply with an undertaking furnished to IIB Homeloans (now KBC Homeloans) on 28 April 2000 in respect of a named client and a named property in Co Tipperary in a timely manner or at all.

The tribunal ordered that the matter be brought before the High Court and, on 1 March 2010, the President of the High Court ordered that the name of the respondent solicitor be struck from the Roll of Solicitors and that the Society recover the costs of the proceedings in the High Court and the costs of the proceedings before the disciplinary tribunal as against the respondent solicitor when taxed and ascertained.

In the matter of Eamon P Comiskey, a solicitor previously practising at Ballycarnan, Portlaoise, Co Laois, and in the matter of the Solicitors Acts 1954-2008 [7337/DT24/09 and High Court 2009 no 102SA]

Law Society of Ireland (applicant)

Eamon P Comiskey (respondent solicitor)

On 17 September 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he failed to comply with an undertaking given to IIB Homeloans (now KBC Homeloans) on 8 February 2001 in respect of a named client and two properties in Co Offaly in a timely manner or at all.

The tribunal ordered that the matter be brought before the High Court and, on 1 March 2010, the President of the High Court ordered that the name of the respondent solicitor be struck from the Roll of Solicitors and that the Society recover the costs of the proceedings in the High Court and the costs of the proceedings before the disciplinary tribunal as against the respondent solicitor when taxed and ascertained.

In the matter of Eamon P Comiskey, a solicitor previously practising at Ballycarnan, Portlaoise, Co Laois, and in the matter of the Solicitors Acts 1954-2008 [7337/DT85/09 and High Court 2010 no 13SA]

Law Society of Ireland (applicant)

Eamon P Comiskey (respondent solicitor)

On 24 November 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he:

a) Failed to comply with an undertaking dated 22 February 2007 to discharge an Investec mortgage on a premises and to furnish partial discharge in a timely manner or at all,

b) Failed to reply to the Society’s correspondence and, in particular, the Society’s letters of 12 February 2009, 18 March 2009 and 31 March 2009 in a timely manner or at all,

c) Failed to attend at the meetings of the Complaints and Client Relations Committee on 13 May 2009 and 24 June 2009, despite being required to do so,

d) Failed to attend at the meeting of the Complaints and Client Relations Committee on 30 July 2009, despite being directed to so attend by order of the High Court made on 13 July 2009.

The tribunal ordered that the matter be brought before the High Court and, on 1 March 2010, the President of the High Court ordered that the name of the respondent solicitor be struck from the Roll of Solicitors and that the Society recover the costs of the proceedings in the High Court and the costs of the proceedings before the disciplinary tribunal as against the respondent solicitor when taxed and ascertained.

In the matter of David O’Shea, solicitor, formerly practising at O’Donovan Solicitors, 73 Capel Street, Dublin 1, and in the matter of the Solicitors Acts 1954-2008 [6743/DT63/09 and High Court record no 2009 no108 SA]

Law Society of Ireland (applicant)

David O’Shea (respondent solicitor)

On 15 February 2010, the High Court made an order striking the name of the respondent solicitor from the Roll of Solicitors.

The High Court had before it the findings of misconduct of the Solicitors Disciplinary Tribunal as follows:

a) Caused, by the misapplication and/or misappropriation of monies, a deficit on the client account of O’Donovan Solicitors of in or about €273,439.28, in breach of regulation 7(2)(a).

b) Misappropriated monies from the client account for his own personal use and benefit of in or about €96,000, in breach of regulation 7(2)(b).

c) Misapplied funds of in or about €80,000 from the client ledger account of a named client, in breach of regulation 7(1)(a)(i).

d) Failed to stamp/failure to ensure the stamping of the deeds of a named client, despite having been put in funds to do so, causing interest and penalties to arise of in or about €38,220 as at February 2008.

e) Dishonestly advanced funds of in or about €47,000 to two named clients from the client ledger account of a named estate, and upon receipt of loan monies to the credit of the two named clients, failed to retain the sum of €47,000 and credit same to the account of the estate. This is in breach of regulations 9, 9(a), 9(b) and 12(2)(a).

f) Misapplied and/or misappropriated monies totalling in or about €198,900 from the client ledger account of the above estate, in breach of regulation 12(1) and 12(2)(a).

g) Misappropriated monies in a minimum amount of €40,500 from the client ledger account of the above estate for his own personal use and benefit, in breach of regulation 7(2)(b).

h) Maintained, or caused to be maintained, false and misleading accounting records in respect of the client account of the above estate deceased, in breach of regulation 12(2)(a).

i) Caused or permitted a transfer deed for a named client to be presented to the Revenue Commissioners for stamping dated 8 February 2008, when the actual date of transfer was in or about March 2007.

j) Misappropriated funds of a named client of in or about €16,539.28 by lodging same to his personal ledger account for his personal use and benefit, in breach of regulations 7(2)(b) and 12(2)(a).

k) Failed to open a client ledger account for the above client, having received monies outstanding to her credit from a named firm of solicitors, and failed to stamp/ensure the stamping of the deeds of the above named client, in breach of regulation 6(4)(b) and 12(2)(a).

In the matter of Mary Miley, solicitor, formerly practising as Mary Miley & Co, Solicitors, at Brewery Place, Rathdrum, Co Wicklow, and in the matter of the Solicitors Acts 1954-2002 [3916/DT66/07 and High Court record 2010 no 4SA]

Law Society of Ireland (applicant)

Mary Miley (respondent solicitor)

On 11 June 2008, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in her practice as a solicitor in that she:

1)   Gave undertakings to a lending institution in respect of the sale proceeds of property without the express or implied authority of the registered owner,

2)   Failed to reply to correspondence from the solicitors for the lending institution concerned,

3)   Withheld the land certificate from the solicitors for the registered owner without any lawful authority to do so,

4)   Prejudiced the registered owner of the property by retaining the land certificate, thereby causing a delay in the sale of the property, resulting in a completion notice being served and specific performance proceedings being issued against the registered owner.

The tribunal ordered that the matter go forward to the High Court and, on 18 January 2010, the President of the High Court made the following orders:

1)   That the name of the respondent solicitor shall be struck from the Roll of Solicitors,

2)   That the respondent solicitor do make restitution to her former client in the amount of €225,515 within four weeks of the making of this order,

3)   That the respondent solicitor, within 14 days of the making of this order, submit to the Society proposals to the satisfaction of the Society for the orderly disposition of all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor,

4)   That the respondent solicitor disclose on affidavit, within 14 days of the making of this order, what files and documents, including title deeds, are in her possession or control or within her procurement arising from her practice as a solicitor and the current whereabouts, or last known whereabouts, of any specific file or documentation or title deeds notified by the Society to her and, in particular, as detailed the affidavit on behalf of the Society sworn on 21 December 2009,

5)   That the respondent solicitor make herself available before the court should the Society so require, on a specified date and at a specified time, for oral examination under oath in relation to the contents of any affidavit sworn by her pursuant to the order of the court,

6)   If necessary, an order pursuant to section 8(1)(c)(v) of the 1960 act, as substituted and amended, that the respondent solicitor forthwith deliver up to the Society’s nominee all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor, which files and documents to be dealt with by the Society pursuant to the provisions of section 19 of the Solicitors (Amendment) Act 1960, as amended by substitution by section 27 of the Solicitors (Amendment) Act 1994,

7)   That the respondent solicitor, within 24 hours of the making of this order, surrender her passport to the Registrar of the High Court,

8)   That the Law Society do recover the costs of the proceedings herein and the costs of the proceedings before the Solicitors Disciplinary Tribunal as against the respondent, to be taxed in default of agreement.

In the matter of Mary Miley, solicitor, formerly practising as Mary Miley & Co, Solicitors, at Brewery Place, Rathdrum, Co Wicklow, and in the matter of the Solicitors Acts 1954-2008 [3916/DT89/08 and High Court record 2010 no 6SA]

Law Society of Ireland (applicant)

Mary Miley (respondent solicitor)

On 10 March 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in her practice as a solicitor in that she:

1)   Failed, up to 23 May 2007 or at all, to comply in full and in a timely manner with the undertaking given by her to Irish Nationwide Building Society (INBS) dated 18 December 2001 on behalf of her client, despite multiple requests by and on behalf of INBS seeking compliance with the said undertaking,

2)   In particular, failed, up to 23 May 2007 or at all, to comply with the terms of the said undertaking, which required her “as soon as practicable” to stamp and register a mortgage deed/charge in favour of INBS and to lodge with INBS a duly stamped and registered mortgage deed and title documentation,

3)   Failed to respond in a timely manner, or at all, to correspondence from INBS and the complainant (on behalf of INBS) requesting compliance with the said undertaking, and further failed to offer any explanation for her continued failure to comply with the terms of the said undertaking,

4)   Failed to respond appropriately in a timely manner, or at all, to the Society’s correspondence in relation to the investigation of the complaint and, in particular, to the issues contained in the Society’s letter of 2 February 2007,

5)   Failed to comply with the notice dated 15 January 2007 issued to her pursuant to section 10 of the Solicitors (Amendment) Act 1994 requiring her, within ten days of the date of service of the said notice, to deliver to a solicitor at the Society all documents in her possession, under her control, or within the procurement of her or her firm in connection with the matters relating to the complaint of the complainant, and failed to comply within the time frame specified therein or at all.

The tribunal ordered that the matter go forward to the High Court and, on 18 January 2010, the President of the High Court made the following orders:

1)   That the name of the respondent solicitor shall be struck from the Roll of Solicitors,

2)   That the respondent solicitor, within 14 days of the making of this order, submit to the Society proposals to the satisfaction of the Society for the orderly disposition of all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor,

3)   That the respondent solicitor disclose on affidavit, within 14 days of the making of this order, what files and documents, including title deeds, are in her possession or control or within her procurement arising from her practice as a solicitor and the current whereabouts, or last known whereabouts, of any specific file or documentation or title deeds notified by the Society to her and, in particular, as detailed in the affidavit on behalf of the Society sworn on 21 December 2009,

4)   That the respondent solicitor make herself available before the court should the Society so require, on a specified date and at a specified time, for oral examination under oath in relation to the contents of any affidavit sworn by her pursuant to the order of the court,

5)   If necessary, an order pursuant to section 8(1)(c)(v) of the 1960 act, as substituted and amended, that the respondent solicitor forthwith deliver up to the Society’s nominee all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor, which files and documents to be dealt with by the Society pursuant to the provisions of section 19 of the Solicitors (Amendment) Act 1960, as amended by substitution by section 27 of the Solicitors (Amendment) Act 1994,

6)   That the respondent solicitor, within 24 hours of the making of this order, surrender her passport to the Registrar of the High Court,

7)   That the Law Society do recover for the costs of the proceedings herein and the costs of the proceedings as against the respondent solicitor before the Solicitors Disciplinary Tribunal, to be taxed in default of agreement.

In the matter of Mary Miley, solicitor, formerly practising as Mary Miley & Co, Solicitors, at Brewery Place, Rathdrum, Co Wicklow, and in the matter of the Solicitors Acts 1954-2008 [3916/DT90/08 and High Court record 2010 no 5SA]

Law Society of Ireland (applicant)

Mary Miley (respondent solicitor)

On 10 March 2009, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in her practice as a solicitor in that she:

1)   Failed to comply with an undertaking dated 28 October 2005 given to a lending institution on behalf of two clients,

2)   Failed to reply to six letters from the solicitors for the lending institution between 22 November 2006 and 1 February 2007 inquiring about the position,

3)   Failed to reply to correspondence from the Society endeavouring to investigate the complaint, being letters dated 14 February 2007, 1 March 2007, and 12 March 2007,

4)   Failed to comply with a direction of the Complaint and Client Relations Committee on 28 March 2007 that she make a contribution of €500 towards the costs incurred by the Society as a result of her failure to respond to the Society’s inquiries,

5)   Failed to respond to a letter dated 16 December 2005 from the solicitor previously acting for her clients,

6)   Failed to protect the interests of her clients, the borrowers.

The tribunal ordered that the matter go forward to the High Court and, on 18 January 2010, the President of the High Court made the following orders:

1)   That the name of the respondent solicitor shall be struck from the Roll of Solicitors,

2)   That the respondent solicitor do make restitution to her former clients in the amount of €9,769 within four weeks of the making of this order,

3)   That the respondent solicitor, within 14 days of the making of this order, submit to the Society proposals to the satisfaction of the Society for the orderly disposition of all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor,

4)   That the respondent solicitor disclose on affidavit, within 14 days of the making of this order, what files and documents, including title deeds, are in her possession or control or within her procurement arising from her practice as a solicitor and the current whereabouts, or last known whereabouts, of any specific file or documentation or title deeds notified by the Society to her and, in particular, as detailed in the affidavit on behalf of the Society sworn on 21 December 2009,

5)   That the respondent solicitor make herself available before the court should the Society so require, on a specified date and at a specified time, for oral examination under oath in relation to the contents of any affidavit sworn by her pursuant to the order of the court,

6)   If necessary, an order pursuant to section 8(1)(c)(v) of the 1960 act, as substituted and amended, that the respondent solicitor forthwith deliver up to the Society’s nominee all files and documents, including title deeds, in her possession or control or within her procurement arising from her practice as a solicitor, which files and documents to be dealt with by the Society pursuant to the provisions of section 19 of the Solicitors (Amendment) Act 1960, as amended by substitution by section 27 of the Solicitors (Amendment) Act 1994,

7)   That the respondent solicitor, within 24 hours of the making of this order, surrender her passport to the Registrar of the High Court,

8)   That the Society do recover for the costs of the proceedings herein and the costs of the proceedings as against the respondent solicitor before the Solicitors Disciplinary Tribunal, to be taxed in default of agreement.