Court rejects move to prevent society striking off lawyer

The Supreme Court yesterday rejected a bid by disgraced solicitor Elio Malocco to prevent the Law Society applying for a court…

The Supreme Court yesterday rejected a bid by disgraced solicitor Elio Malocco to prevent the Law Society applying for a court order striking his name off the Roll of Solicitors.

The court also dismissed Malocco's application to secure access to some €55,000 in bank accounts. It noted the society's compensation fund had paid out some €721,811 as losses accepted by the society as due to dishonesty on Malocco's part.

Mr Justice Kearns yesterday delivered the three-judge court's judgment dismissing an appeal by Malocco against a High Court judgment of July, 2003.

The High Court refused Malocco's application to discharge orders made in 1991 which froze certain bank accounts and refused to extend time to allow Malocco bring an appeal against a finding of the Law Society Disciplinary Tribunal of February 2000 that Malocco was guilty of misconduct.

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It further declined to strike out a motion by the society of March 24th, 2000 seeking to strike his name from the Roll of Solicitors.

Outlining the background to the appeal, Mr Justice Kearns said Malocco enrolled as a solicitor in 1977 and practised in Dublin in partnership with Mr Conor Killeen, under the style "Malocco and Killeen".

In September 1991, the Law Society had received a complaint about the firm from Irish Press Newspapers, who were clients of the firm.

The society had investigated the firm and this led to court orders freezing payments, except with the leave of the High Court, out of any bank accounts of the two solicitors or their firm, and the suspension of the practising certificates of both solicitors.

Mr Justice Kearns noted that Malocco left Ireland in 1991 and did not return until 1993. He was convicted in March 1993 of six counts of dishonesty in relation to his practice as a solicitor and received a five-year sentence.

He lost an appeal against conviction in 1996 and remained in custody until March/April, 1998.

The Law Society Disciplinary Tribunal made findings of misconduct against Malocco in February, 2000. He then took a judicial review challenge to the procedures of the tribunal which was dismissed by the High Court in October, 2002.

In February, 2003 the motion to strike Malocco's name from the Roll of Solicitors again came before the High Court. He made various submissions, but in July 2003 the High Court ruled against him. Malocco presented his own appeal to the Supreme Court against the High Court judgment. The appeal was heard last month and judgment reserved.

Rejecting Malocco's appeal on all grounds, Mr Justice Kearns upheld the High Court decision that sums totalling some €55,000 in two bank accounts in Malocco's name in AIB, Dame Street, Dublin, come under the terms of the freezing orders granted by the High Court in 1991.

The judge said the whole scheme of Section 20 of the Solicitors Amendment Act 1960 was to protect client funds in circumstances such as those which had arisen in this case. Malocco had argued that because the accounts were opened in 1994 after the freezing orders, and were made up of rents paid on properties, they were outside the terms of the freezing orders.

Mr Justice Kearns said it would be "a totally illogical interpretation" of the Act to exclude from its application the personal funds of the solicitor where client funds had been lost in circumstances where the society had a bona fide opinion those losses were due to dishonesty by the solicitor in relation to his practice.

He would totally reject the contention that the Act did not apply to personal funds.

While the issue as to whether Section 20 referred to future accounts was more problematic, the judge said he was satisfied the proper construction of Section 20 must be taken as including not only accounts in existence at the time of the freezing order, but also any accounts opened subsequently by the solicitor or his firm. It was open to Malocco to apply for payment to meet living expenses or other necessaries, he noted.

Mr Justice Kearns also upheld the High Court refusal to extend time for the purpose of allowing Malocco appeal against the disciplinary tribunal's finding of misconduct on his part.

He was satisfied the High Court had correctly held that Malocco had abandoned any intention to appeal and had instead, on proper legal advice, taken a judicial review challenge to the tribunal's finding.