Irish Court of Appeal

 

 

THE COURT OF APPEAL

Record No.: 2020/259                                         Neutral Citation Number [2022] IECA 2

Donnelly J.

Haughton J.

Collins J.

 

BETWEEN

 

LAW SOCIETY OF IRELAND

Applicant/Respondent

 

AND

KATHLEEN DOOCEY

Respondent/Appellant

 

 

Judgment of Mr Justice Maurice Collins delivered on 11 January 2022

 

1.                  I agree with the judgment of Donnelly J and accordingly I agree that this appeal should be dismissed. I wish to add some brief observations of my own on the appeal. For that purpose, I gratefully adopt the detailed factual narrative set out in the judgment of my colleague.

 

2.                  There was no issue before the Solicitors Disciplinary Tribunal (“the Tribunal”), the High Court or before this Court on appeal as to whether Ms Doocey (“the Solicitor”) was guilty of professional "misconduct". Misconduct was admitted by the Solicitor in multiple respects.

 

3.                  The sole issue before the High Court was as to the appropriate sanction for the admitted misconduct of the Solicitor and, specifically, whether that misconduct was sufficiently serious to warrant the making of an order striking her off the roll of solicitors. Before the Tribunal, the position of the Law Society was that such a sanction was appropriate and it asked the Tribunal to make a recommendation to that effect (the sanction of strike-off being reserved to the High Court). That was also the sanction sought by the Law Society when the report of the Tribunal was brought before the High Court pursuant to section 7(3)(c) of the Solicitors (Amendment) Act 1960 (as amended) (“the 1960 Act”). While the Tribunal had not recommended that the Solicitor be struck off,  and had instead recommended sanctions short of a strike-off, its recommendations did not bind the Law Society. More importantly, the Tribunal’s recommendations as to sanction did not bind the High Court and it was clearly entitled to make an order striking off the Solicitor: section 8(1)(a)(i) of the 1960 Act. There is “no question of [the High Court] being bound by an opinion expressed by or a recommendation made by the Tribunal” and “in all cases the ultimate arbiter is the court” (per McKechnie J in Law Society v Coleman [2018] IESC 80, para 61).

 

4.                  “Misconduct” is defined in section 3 of the 1960 Act. For the purposes of this appeal, the relevant part of the definition is (e), which refers to “any other conduct tending to bring the solicitors’ profession into disrepute.” "Dishonesty" is not a separate category or heading of misconduct for the purposes of the 1960 Act. [1] Neither is dishonesty a precondition to the making of a strike-off order under section 8(1)(a)(i).

 

5.                  Honesty is, of course, a fundamental attribute required of all legal professionals in practice in the State. Members of the Bar of  Ireland have a duty to “act at all times with honesty and integrity” (Rule 2.3(b) of the Code of Conduct for the Bar of Ireland). Similar obligations are proposed in the draft Code of Practice for Practising Barristers that the Legal Services Regulation Authority has issued for consultation pursuant to section 22 of the Legal Services Regulation Act 2015 (“the 2015 Act”) (paragraphs 3.3 and 3.4). As regards solicitors, the Law Society's Guide to Good Professional Practice identifies honesty as one of the “core values” of the profession which “a solicitor should at all times observe and promote” and avoid “any conduct or activities inconsistent with those values.” A solicitor, the Guide says simply “must be honest in his practice as a solicitor in all his dealings with others.” (section 1.3) [2]  Because solicitors handle client monies, their adherence to the standards of honest conduct is, of course, of particular importance.  The need for absolute honesty - and the serious consequences for solicitors of any departure from honest conduct - is emphasised time and again in the authorities.

 

6.                  We were referred to a great many authorities but for present purposes I do not think it necessary to look beyond the decisions of the Supreme Court in In re Burke [2001] 4 IR 445 and Carroll v Law Society of Ireland [2016] IESC 49, [2016] 1 IR 676.

 

7.                  In re Burke  concerned an application by a solicitor for restoration to the roll of solicitors under section 10 of the 1960 Act. Section 10(4) of the 1960 Act (inserted by section 19 of the Solicitors (Amendment) Act 1994)  provides that, where it is shown that the “the circumstances which gave rise to the striking off 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…” the High Court cannot restore the applicant’s name, even conditionally, unless it is satisfied that “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.” Speaking for the Supreme Court, Keane CJ identified the rationale of section 10(4) as follows:

 

“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 inevitably must 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 subs. (4) is, of necessity, significantly limited.” (at page 451)

 

8.                  In re Burke was in turn relied on by McKechnie J giving the sole judgment of the Supreme Court in Carroll v Law Society. Carroll concerned admission to the roll of solicitors. Section 24(1)(e) of the Solicitors Act 1954 provides that a person shall not be admitted as a solicitor unless “he has satisfied the Society that he is a fit and proper person to be admitted as a solicitor”. McKechnie J closely analysed that requirement in his judgment. In his view, the requirement of being a “proper person” related to the character and suitability of the person and “[c]ritical in this respect are matters such as honesty, integrity and trustworthiness: a person who understands, appreciates and takes seriously his responsibilities to the public, to the administration of justice, to individual colleagues and to the profession as a whole” (para 66). According to McKechnie J, “one common strand permeates all levels of the profession... trust, integrity, probity and, in a nutshell, honesty” (para 71(vi)) [3] and  that “common thread of honesty has no boundary and can never be stood down” (para 73). He went on to observe that where “proven dishonesty is involved, with or without the oft associated features of misrepresentation, concealment and deceit, such misconduct will almost always feature at the highest level of the [disciplinary] scale and in such circumstances, the sanction of dismissal will be a front line consideration.” (para 71(vii)).

 

9.                  It is notable that, when amending section 10 of the 1960 Act by the insertion of section 10(4), the Oireachtas clearly did not consider it necessary to define “dishonesty”. Equally, the authorities opened to the Court in this appeal do not disclose any attempt at judicial definition in this context. “Dishonesty” is not defined in Part 6 of the Legal Services Regulation Act 2015 either. As Lord Hughes JSC aptly observed in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, [2018] AC 391 (at para 53), dishonesty is a concept “characterised by recognition rather than by definition”.

 

10.              Here the Solicitor admitted each of the 24 allegations of misconduct against her, both as to the fact of the conduct alleged and its character as misconduct. The Tribunal proceeded to make findings of misconduct in the terms of those allegations. Those findings of misconduct are set out in full in the Appendix to this judgment (edited so that the clients of the Solicitor are not identifiable). As Mr McCullough SC stated in the course of oral argument, these findings involved a "waterfall of transactions" involving the Solicitor breaching fundamental rules relating to the handling of client monies to conceal a growing deficit on her client accounts. Many of the findings of misconduct related to teeming and lading admittedly carried on by the Solicitor whereby she wrongly transferred monies from client account A to client account B in order to “conceal” a deficit or shortfall in client account B (for instance 13(b) and 13(d)-(j)). They also included findings that the Solicitor put a false and inaccurate statement of account on one file for the purposes of concealment (13(c)); that she failed to record transactions for the purposes of concealing her "misappropriation" (13(l)); that she misdescribed transactions and amounts in her client account books (13(m)-(o)) and that she improperly took money from client accounts into her office account (r), (s), (v) and (x).

 

11.              A significant deficit (amounting to €169,152) was allowed to arise on the client accounts maintained by the Solicitor. While an explanation was offered for part of that deficit (the Solicitor said that a cyber-attack(s) had resulted in the loss of €50,000), the bulk of it was not accounted for. Loss to clients (and consequent claims on the Law Society’s Compensation Fund under section 21 of the 1960 Act) would inevitably have resulted but for the fact that the family of the Solicitor made good the deficit from their own resources. The fact that the conduct of the Solicitor resulted in a significant (and unaccounted for) deficit is a significant feature of these proceedings. While the fact that the deficit was made good avoided loss to the clients (and/or to the Compensation Fund) that merely mitigated the consequences of the Solicitors’ misconduct and did not alter its complexion.

 

12.              The President of the High Court took a serious view of the Solicitor’s admitted misconduct.  In her view, it was “impossible... based upon the facts which are admitted, to avoid concluding that the [Solicitor’s] misconduct in this case, concerning as it does a complete abuse of the trust and confidence which clients are entitled to expect of their solicitor, is other than extremely serious” (para 29). Later in her judgment she stated:

 

“It is a cardinal and basic rule that solicitors must never touch client’s monies. Not only did the [Solicitor] repeatedly breach that rule but she dishonestly sought to cover her tracks until she was caught by her own professional body…” (para 40)

 

Having referred to the fact that the Solicitor had two prior disciplinary infringements [4] (which the High Court was obliged to take account of by section 8(1)(a)(i)), the President expressed her conclusion in the following terms:

 

“The Court’s obligation is to protect the public from solicitors whose practices place their funds at risk. The Court marks in the strongest terms its disapproval of the respondent’s failure to adhere to the standards of honesty and integrity expected of the person who is fit and proper to maintain on the Roll of Solicitors and considers that anything less than a strike off would not be appropriate.” (para 41)

13.              The principal argument advanced by the Solicitor in this appeal is that the President was not entitled to conclude that the Solicitor had acted dishonestly. In the Solicitor’s written submissions it was repeatedly asserted that the Tribunal had expressly found that she had not acted dishonestly and it was submitted that the President was bound by that finding and could not go behind it. Thus, it was said that the “Tribunal accepted that Ms Doocey did not have dishonest intent”, [5]  that the Tribunal “had the opportunity to observe Ms Doocey when she gave her evidence and it clearly and unequivocally indicated that she did not have dishonest intent” [6] and that this Court was “left with an unchallenged finding by the Tribunal that Ms Doocey did not act dishonestly and a finding premised on the same evidence, by the learned President that she did”. [7] No such findings were in fact made by the Tribunal, as was accepted at the hearing of the appeal. The argument advanced at the hearing was related but different. The Tribunal, it was said, had not made any positive finding of dishonesty and, in the absence of such a finding, the President was not entitled to come to the conclusions she had, at least without first remitting the case to the Tribunal for the purpose of taking further evidence (as is provided for by Section 8(1)(b) of the 1960 Act).

 

14.              This argument is, in my view, misconceived. The Solicitor had admitted all of the allegations of misconduct made by the Law Society and the Tribunal had accordingly made findings of misconduct in the terms alleged. The essential question before the President was what was the appropriate sanction having regard to those findings (regard also being had to the prior findings of misconduct). The misconduct disclosed by the Tribunal’s findings was, in my view, inherently and intrinsically dishonest by any objective standard (I shall discuss below the role - if any - of subjective knowledge and/or intent in this context). The President did not, as the Solicitor contended, “go behind” the Tribunal's findings or substitute her own view of the evidence for those findings. Rather, she relied (and was entitled to rely) on those findings - and only on those findings - to reach the conclusions that she did. In her view, those findings are consistent only with deliberate and systematic wrongdoing, involving clear dishonesty, on the part of the Solicitor. I share that view.

 

15.              In this context, it is clear that the standard for assessing whether conduct is dishonest is essentially objective.  As Donnelly J explains in her judgment, the approach adopted by the Court of Appeal of England and Wales in R v Ghosh [1982] QB 1053 (involving a two-legged test of dishonesty, the first leg being whether the conduct complained of was dishonest by the objective standards of ordinary reasonable and honest people and the second leg being whether the defendant must have realised that ordinary honest people would so regard his or her behaviour) appears never to have been adopted in this jurisdiction and was rejected by this Court in People (DPP) v Bowe & Casey [2017] IECA 250 and People (DPP) v Murphy [2019] IECA 63. In People (DPP) v Bowe & Casey, the Court characterised the issue of (dis)honesty as a “value judgment”, one to be “judged by the standards of ordinary reasonable men”. (para 174). [8]

 

16.              In England and Wales, the approach taken in R v Ghosh was never applied in civil cases and in Ivey v Genting Casinos (UK) Limited [2017] UKSC 67, [2018] AC 391, the UK Supreme Court held that the second leg of the R v Ghosh test did not correctly represent the law. Whether Ivey moved “the tectonic plates of the legal firmament” (as Rupert Jackson LJ subsequently suggested in Solicitors Regulation Authority v Wingate [2018] EWCA Civ 366, [2018] 1 WLR 3969, (at para 90)) is perhaps open to debate but Ivey  makes it clear that, as a matter of English law, there is no requirement that a defendant must (subjectively) appreciate that what has been done is, by the (objective) standards of “ordinary decent people”, dishonest: per Lord Hughes JSC at para 74. That is the position in Irish law also.

 

17.              The assessment is not wholly objective, however. The “actual state of the individual knowledge or belief as to the facts” is also a relevant consideration: Ivey, para 74 (my emphasis). What is “objectively judged is the standard of behaviour given any known actual state of mind of the actor as to the facts”: Ivey, para 60 (again, my emphasis). In his judgment in Ivey, Lord Hughes revisits a scenario that had been discussed in R v Ghosh by way of illustration. Assume that a person comes from a foreign country where public transport is free and then travels on a bus without paying any fare, in the belief that public transport is free. In such a scenario, there will be nothing objectively dishonest about not paying the bus fare (para 60). Such a scenario may be contrasted with one where a person travels on public transport without paying because they do not believe fare-evasion to be wrong, or simply because they want to make the journey but do not have the necessary fare. In such a scenario, the person knows that it is necessary to pay a fare and their failure to do so will be objectively dishonest.

 

18.              The Law Society does not take issue with the approach in Ivey but says that it is of no avail to the Solicitor. The findings here, it says, are of conduct which is self-evidently dishonest and that is so regardless of whether the Solicitor sees it as such. The Solicitor’s conduct was deliberate and knowing: for instance, the Society says, when the Solicitor took €24,000 from MD’s client account and lodged that sum into her office account describing it as “loan funds”, she was fully aware that the money was client money, not loan funds.

 

19.              On the facts known to the Solicitor, her conduct was objectively dishonest. All of the findings of misconduct involved advertent and intentional conduct by the Solicitor. Sums of money did not auto-transfer from one client account to another or from client accounts to the Solicitor’s office accounts. The Solicitor knew that the money that she transferred from client account A to client account B was the money of client A, not client B. Equally, she knew that the money transferred from client account X to her office account was client X’s money, not hers. The misdescriptions and misstatements  referenced in the findings did not auto-generate; they were generated by the Solicitor who was at all times aware of the correct position. The wrongful transactions set out in the findings - all of them admitted by the Solicitor - were carried out by the Solicitor, not by any third party. Whether or not the Solicitor considered her conduct to be dishonest is not the test. It may well be that she persuaded herself that what she was doing was excusable in the circumstances and/or that everything would come right at some point in the future but that does not alter the objectively dishonest character of the conduct knowingly engaged in by her. The Solicitor could not - and, in fairness to her, did not - assert any legal entitlement to act as she did or  make any “claim of right” or any analogous claim capable of providing any justification for her conduct. That being so, I agree with Donnelly J that Ivey does not assist the Solicitor here.

 

20.              The Solicitor also advanced a fair procedures argument at the hearing of the appeal - one not flagged in her Notice of Appeal - to the effect that she was not on notice that the High Court might come to the conclusion that she had acted dishonestly. Having reviewed the transcript of the hearing before the President (which was only provided to the Court after the hearing of the appeal) I share Donnelly J’s sense of surprise that such an argument has been made. At the outset, counsel for the Law Society made it clear that it regarded what had been done by the Solicitor as “inherently dishonest acts” and she referred to “attempts to conceal what was going on in order to present a more favourable picture to the Law Society.” Addressing the arrangements which had been put in place to protect the clients of the practice, counsel expressed “very real serious concern” given that “Ms Doocey has shown that when under pressure she could resort to the dishonest handling of client funds”. Counsel then opened to the court the passage already set out above from para 71(vii) of  Carroll v Law Society as to the disciplinary consequences of “proven dishonesty” by a solicitor and cited other cases to show “the extent to which the Court will take a very serious view of any matters involving dishonesty.” Counsel for the Solicitor (who did not appear in this Court) then made submissions, in the course of which there were several exchanges with the President as to whether her conduct involved deliberate wrongdoing or whether (as counsel sought to suggest) it was the result of “chaos… negligence and… carelessness” . Counsel was driven to acknowledge that the Solicitor had been “trying to... cover her tracks to make sure things fitted” and “took the point” in relation to “the deliberateness of the concealment” and “the way in which the funds were manipulated”. In my view, the transcript of the hearing leaves no room for doubt but that the Solicitor was squarely on notice that the question of whether her admitted wrongdoing involved deliberate wrongdoing/dishonesty was an issue - was in truth the principal issue - in the High Court’s assessment of sanction and the fair procedures point is accordingly without merit.

 

21.              As I have said, the President was entitled to take a different view on what the appropriate sanction was to the view taken by the Tribunal. She was also entitled to take the view that the arrangements for handling client monies, which the Tribunal had recommended should be imposed by way of conditions to be attached to the Solicitor’s practising certificate would not adequately protect the public. In any event, as the President observed (at para 39) it is difficult to see how a member of the public or a potential client could have trust or confidence in the Solicitor in the knowledge that, because of her misconduct, she was permitted to practice only on the basis that she would not have access to client funds.

 

22.              In my view, the President was entitled to conclude that the Solicitor had acted dishonestly and was entitled to conclude that the appropriate sanction was strike-off. The decision of the Supreme Court in Law Society v Carroll [2009] IESC 41, [2009] 2 ILRM 77 indicates that this Court cannot simply substitute its view for the view taken by the President and that her decision can be reversed only if “as a matter of law it was clearly incorrect” (per Geoghegan J, at page 88). So far from her decision being “clearly incorrect”, I cannot readily see how the President could have reached any other decision in the circumstances. Striking-off the Solicitor from the roll of solicitors was, on the admitted facts here, a lawful and proportionate sanction.

 

23.              One cannot but have sympathy for the Solicitor, who was only admitted to the roll of solicitors in 2014. However, as Sir Thomas Bingham MR noted in Bolton v Law Society [1994] 1 WLR 512 while membership of the solicitors’ profession may bring many benefits, those benefits come at the price of being held to exacting standards of honesty, integrity and trustworthiness. The continuing vitality of such standards is essential to the maintenance of trust and confidence in the solicitor’s profession, which is an essential component in the administration of justice and the rule of law. In my view, the admitted misconduct of the Solicitor here involved such a serious departure from those standards that she has, regrettably, forfeited her entitlement to remain on the roll of solicitors.

Result:     Appeal Dismissed

 

Appendix - The Findings of Misconduct Made by the Tribunal

based on the admissions made by the Solicitor

 

 

13 (a) “Allowed a deficit of €169,152 to arise to be on her client account as of 31 December 2017;”

 

13 (b) “Concealed a deficit of €50,000 in relation to the [C] estate by using other clients’ money credited to their ledger account thereby concealing that deficit”

 

13 (c) “Put a statement of account dated 1 September 2015 on the client’s file which showed an incorrect sale price of €255,000 instead of the actual sale price of €205,000 and also showed a total of €100,000 paid to clients which had the effect of concealing the irregularities in relation  to this matter;”

 

13 (d) “Used €42,720 received from [J & DC] in respect of a purchase which helped conceal the deficit which had arisen in relation to the [C]  matter leaving a shortfall of €42,658.50 on the [J & DC] ledger account”

 

13 (e)  “Used €42,195.57 from the [O’ D] estate to help clear the deficit on the [C] estate ledger account and thereby caused a shortfall on the [O’ D] estate ledger account;”

 

13(f)  “Took €37,831.78 from the estate of [S] deceased and credited that sum to the [O’D] estate ledger account which helped conceal the shortfall on that ledger account;”

 

13(g)  “Cleared the debit balance of €33,177 on the [S] estate ledger account with a transfer of

that amount dated 30 June 2017 from Suspense SUSIG client ledger account which concealed the shortfall on the [S] estate ledger account and left a shortfall on the SUSl6 Client ledger

account;”

 

13(h) “Cleared the shortfall on the Suspense SUSl6 client ledger account by the transfer of €35,900 dated 30 June 2017 from the Client account of [JG] which left a shortfall on Mr [G’s] client account;”

 

13 (i) “Cleared the shortfall on the [JG] client ledger account by a transfer of €35,900 from

another client ledger Suspense account SUSl7 which left a debit balance on that ledger account

thereby concealing the shortfall on the [G] ledger account;”

 

13 (j) “Transferred €24,850 from [DC’s] client ledger account to the Suspense SUSl7 client

account with a date of 13 December 2017 which contributed to a shortfall of €25,000 on [DC’s]  client ledger account;”

 

13 (k) “Paid €25,000 from the client account on 21 December 2017 to the Legal Aid Board on Mr [C’s] behalf but failed to enter this payment in the books of account”

 

13 (l) “Took €24,000 out of a sum of €64,659.06 received into the client account from [MD] on 11 July 2017 and lodged the amount to the office bank account on 12 July 2017 and failed to record the receipt and payment of this sum in the client books of account thereby concealing the misappropriation;”

 

13 (m) “Wrongfully credited the €24,000 taken from [MD’s] money in client account to the office ledger account of the Suspense SUSl7 account describing it as “rectification” and wrongfully described the lodgement of €24,000 as “loan funds” in the office bank account;”

 

13 (n) “Wrongfully paid the sum of €8,581.41 from the client account to the office account and described it as “rectification” in the office bank account. On the same date the €8,581.41 payment from the client account was debited to the Suspense SUSl7 client ledger account and caused a debit balance on the SUSl7 client ledger account to increase from €4,251.24 to €12,835.65;”

 

13 (o) “Mis-described the sum of €34,772.30 in the client account books which helped conceal the fact that it was mainly composed of clients’ money used to clear debit balances and deficits on other clients’ ledger accounts;”

 

13 (p) “Caused a debit balance of €18,225 to occur on Ms [D’s]  client ledger account in August 2017 mainly because of the misapplication of the 624,000 and subsequently cleared this debit

balance with a transfer dated 28 December 2017 of €18,225 from the Suspense SUSl7 client

ledger account;”

 

13 (q) “Lodged a total of €26,000 to the client account on 23 November 2017 composed of €13,500 belonging to [B and BN] and €12,500 belonging to [BC] which was incorrectly credited to the Suspense SUSl7 client leger account where it cleared a debit balance and was used with other clients monies to cover various deficits on various client ledger accounts

thereby concealing the shortfall and deficits on the client account;”

 

13 (r) “Between January and December 2017 drew various amounts totalling €20,090 from the client account to the office account and paid a probate fee of €319 out of client account resulting in a debit balance of €18,459 on the client ledger account of the estate of [TS]  deceased;”

 

13 (s) “In January 2018 after clearance of the debit balance of €18,459 paid a further €6,150 and €4,920 from the client account of [TS] to the office account leaving a sum of €11,070 remaining to be refunded to the Client account in relation to that estate as of January 2018;”

 

13 (t) “In the [C] estate failed to enter a client account cheque for €4,322 written on 24 November 2017 in the books of accounts and instead the same amount was dated 1 November and was debited to the estate client ledger account and credited to the Suspense SUSl7 client ledger account with the effect of reducing the debit balance on that ledger account and increasing the debit balance on the [C] estate ledger account ”

 

13 (u) “Failed to show a receipt of €5,750 in the [LO’C] client ledger account notwithstanding

the payment of same in September 2017 and credited this sum of €5,750 in the books of account

to a number of client’s ledger accounts in various amounts thereby reducing the debit balances on those accounts;”

 

13 (v) “Drew amounts totalling €10,698 to the office account in the period 2015 to 2017 which were debited to the client ledger account of the [C] estate leaving a shortfall of €6,177 as

of 31 December 2017 in the [C] estate.”

 

13 (w) “Having received €5,000 into the [PR] client account in December 2017 for the purposes of discharging a liability in that amount in a family law matter, failed to pay that money until 2018 and instead moved the €5,000 to the credit of the Suspense SUSl7 client ledger account with a date of 31 December 2017 thereby concealing a shortfall on that account;”

 

13 (x) “Drew amounts from the client account to the office account in the period February 2016 to December 2017 in the estate of [JO’D] exceeding the amount of costs agreed with the client by about €20,000;”