Judge refuses to strike-off solicitor over €259,000 client deficit
Court told of ‘very unusual’ circumstances but no dishonesty surrounding the deficit
The Four Courts.
The president of the High Court has refused to strike off a solicitor, who is also a coroner in Co Kerry, over a finding of professional misconduct against her for causing a deficit of €259,000 on a client account.
Mr Justice Peter Kelly stressed there was no dishonesty by Helen Lucey, principal of the firm Marshall & Maculay, Listowel, Co Kerry, in the “very unusual” circumstances resulting in the deficit and that no dishonesty was ever alleged against her in her long career.
In the absence of dishonesty, he considered a striking off, as sought by the Law Society, would be “unjustified and disproportionate”.
He instead imposed the lesser sanction recommended by the Solicitors Disciplinary Tribunal (SDT) of permitting her practise only as an assistant solicitor under supervision of another solicitor approved by the society.
He was satisfied that would meet the justice of the case and protect the public interest and reputation of the solicitors’ profession.
He noted evidence of considerable improvement in her practice and that a substantial enhancement of the value of the relevant client’s estate was due to her “astute” strategy in securing the sale of a former Garda station at Oranmore for €4.5 million when it was earlier valued at €100,000.
He also had regard to testimonials on her behalf, including from other solicitors, as to her honesty and trustworthiness.
The judge said he appreciated his order might effectively mean, because she is a sole practitioner, she would have to sell her practice which employs an assistant solicitor, receptionist and bookkeeper.
Ms Lucey (65) is coroner for north and west Kerry and will be able to continue in that role, from which the court heard earlier she derives her main income, he noted.
She could also seek employment elsewhere as an assistant solicitor, he added.
The judge granted an application by Eoin McCullough SC, for Ms Lucey, for a stay on those orders until January to facilitate consideration of an appeal and/or to arrangements for sale of the practice.
No stay applies on additional orders requiring her pay €15,000 to the Society plus certain costs.
The issue of sanction arose after the judge last month upheld the SDT’s finding of professional misconduct against Ms Lucey over the €259,000 deficit, caused as a result of Ms Lucey negotiating a settlement for herself in that sum and lodging it in a personal account.
The settlement concerned proceedings initiated by the relevant client, via other solicitors, against Ms Lucey, but that never went ahead; a complaint by the client to the Society which was not upheld; and Ms Lucey’s own proposed counterclaim against the client over alleged aggravation and defamation.
The judge upheld findings by the SDT that Ms Lucey had in 2011 transferred €259,000 to herself from the client account of a deceased woman, without express instructions of the beneficiary of the deceased’s estate, in breach of the solicitors account regulations.
The €259,000 settlement was negotiated at a meeting in October 2006 between Ms Lucey and Cork-born Finbarr Ross, as financial adviser to the beneficiary, then aged in her 80s but accepted as having full mental capacity.
The judge found Ms Lucey was acting as a solicitor for the beneficiary as far as the monies were concerned; held the monies in that capacity and had a conflict of interest in doing so when she was contemplating a counterclaim which she satisfied in part against those monies.
Ruling on sanction, the judge said, having observed Ms Lucey in the witness box, he had not concluded she was dishonest but rather, in relation to the €259,000 deficit, there was a combination of lack of judgment, lack of insight and a “certain amount of naivety”.
While absence of judgment and insight in a solicitor is of concern, especially from the point of view of public protection, he was satisfied there was no realistic prospect what had occurred here would happen again as the facts were “so peculiar and extraordinary” they were unlikely to be repeated.
While Ms Lucey had had other difficulties with the Society in the past, she had been cleared of practically all allegations against her and “certainly of any serious ones”, he added.
He did not attach much significance to the past matters but they meant she was not before the court with “a clean record”.