Solicitor loses appeal against misconduct finding

A solicitor who challenged a finding against him of misconduct has lost his appeal.

The appeal, which arose from a threat to destroy files belonging to two clients, was dismissed by the president of the High Court. Mr Justice Peter Kelly upheld a €5,000 fine imposed by a Law Society Solicitors' Disciplinary Tribunal (SDT) on Barry Sheehan, Marlboro Street, Cork.

The judge also awarded costs of the appeal against Mr Sheehan but put a stay on the costs order, and on the €5,000 fine, for 21 days in the event of an appeal.

The judge affirmed a censure imposed on Mr Sheehan by the SDT which had described his conduct as “morally culpable of a disgraceful kind”.

The case arose out of a dispute between Mr Sheehan and a Co Louth couple, Bernard and Viola Bingham, who had sued the Mater hospital over alleged misdiagnosis of their 16-year-old son, Mirek, who died in the hospital on December 31st, 1999.

That case was eventually struck out on grounds of delay.

The Binghams had retained a number of firms of solicitors to act for them in that case, parting company with each of them in turn, Mr Justice Kelly noted when dismissing Mr Sheehan’s appeal.

In 2006, Mr Sheehan took on the Binghams’ case but a dispute arose over payment of fees in their case against the Mater. Mr Sheehan sued the couple for €37,725 fees and they brought a counter-claim against him alleging professional negligence and breach of contract.

Both those cases were dismissed but the Binghams made a complaint to the Law Society, alleging Mr Sheehan was abusing his position by threatening to destroy the entire file in their Mater case unless the couple settled his fees bill. They wanted the file so they could appeal the Mater case to the Supreme Court.

Destruction of files

Following hearings before the SDT in 2015 and 2016, the tribunal found he had wrongly threatened them with the destruction of files in what was a deliberate act to force them to give him some money for the work he did on their behalf. This was also in spite of the fact his claim for those legal costs had already been dismissed by the Circuit Court, the SDT said.

The SDT found him guilty of professional misconduct.

Mr Sheehan appealed that decision to the president of the High Court. Among other claims, he challenged the tribunal’s jurisdiction.

In his ruling on that appeal on Tuesday, Mr Justice Kelly said Mr Sheehan had been alive to his claim the SDT was statutorily precluded conducting the hearing as far back as 2014 but he at no stage took any steps to bring judicial review proceedings.

Rather, Mr Sheehan allowed the SDT hearings to proceed on its merits over many days.

When that gave rise to an adverse finding against him, he then exercised his right of appeal to the High Court, including on the jurisdictional basis, Mr Justice Kelly said.

The jurisdictional issue should have been tested through judicial review and, having failed to do so previously, Mr Sheehan cannot now be heard on that topic, the judge said. He dismissed the appeal.

He also told Mr Bingham, who represented himself and his wife, the court had no jurisdiction to deal with the issue of whether Mr Sheehan had returned the full file. Mr Sheehan told the court previously he had returned the full file and that was now a matter of separate dispute between the Binghams and Mr Sheehan, the judge said.

He also awarded the Binghams €750 for out-of-pocket expenses against Mr Sheehan.