Solicitor withheld part of client’s €100,000 damages award

A solicitor had "no insight" into his "unfair and unreasonable behaviour" in withholding part of a client's €100,000 damages settlement towards legal costs which were ultimately paid by the defendant in the case, a High Court judge said.

Michael O’Sullivan, formerly principal of Michael O’Sullivan & Co Solicitors, Baggot Hall, Lower Baggot Street, Dublin, “clearly needs supervision”, Mr Justice Paul McDermott said.

While his former client was left at a loss for a considerable period, Mr O’Sullivan “showed no regret for any of his actions nor did he offer any indication that such behaviour might not be repeated in future”, the judge said.

The judge confirmed a finding of misconduct against Mr O'Sullivan made by a Law Society Solicitors' Disciplinary Tribunal (SDT) over deducting without agreement monies due to the client following settlement of a personal injuries case in February 2004.

The solicitor also failed to provide written notification of what he thought would be recovered in costs from the defendants in that case, the judge said.

He directed Mr O’Sullivan may only practise as an assistant solicitor in a partnership and under the supervision of another solicitor of at least ten years standing. He must also make restitution of €6,774 to his former client.

The judge said the client claimed he was being overcharged for the solicitor’s services and was refused an explanation of how the fees were broken down.

The client had said the defendant in his personal injuries action had agreed to pay legal costs as part of the settlement. The client also claimed undue pressure was applied on him at the time to settle the case and that Mr O’Sullivan later demanded the client withdraw what he called “false allegations of professional misconduct”.

Complaint

Mr O’Sullivan retained €44,850 from the settlement, the judge said.

Following a complaint from the client and the Law Society’s intervention, the actual costs due to Mr O’Sullivan were found to be €35,000 and were recovered from the insurance company which represented the defendant in the original personal injuries case. That money was then paid directly to the former client partly in lieu of the withheld amount.

After €3,000 actually due from the former client to Mr O’Sullivan was deducted, this meant the solicitor still owed €6,774 to the former client.

The tribunal’s finding that Mr O’Sullivan should pay the €6,774 restitution was reasonable and supported by the evidence, the judge held. An additional direction he pay €10,000 to the Society’s compensation fund was also reasonable, he held.

Misconduct

While the misconduct which Mr O’Sullivan was found guilty of by the tribunal was very serious, it fell short of the more egregious forms of misconduct of fraud and dishonesty that might deserve a solicitor being struck off, the judge said.

It was clear Mr O’Sullivan dealt with the overcharging issue raised by his former client “in an unreasonable and unprofessional way”, he said.

Mr O'Sullivan, he noted, brought an earlier challenge to the disciplinary inquiry into his conduct which was rejected by the High Court and Supreme Court. He more recently initiated a case, which is pending, alleging parts of the law governing conduct of solicitors is unconstitutional and also breaches the European Convention on Human Rights.