Solicitor struck off for ‘totally dishonouring’ undertaking

Mary Carolan

A solicitor has been struck off for professional misconduct over "totally dishonouring" an undertaking to provide security for a €450,000 loan advanced to him by ICS Building Society.

That institution suffered the complete loss of the €450,000 advanced to Paul Lambert, said the President of the High Court, Mr Justice Nicholas Kearns.

He granted the Law Society an order striking off Mr Lambert, the principal and sole member of Merrion Legal Solicitors, Sir John Rogerson's Quay, Dublin 2.

A Solicitors Disciplinary Tribunal (SDT), having found professional misconduct in June 2012, later recommended Mr Lambert be permitted practise only as an assistant solicitor under supervision but the society sought a strike-off order.

Submissions were previously heard on behalf of both sides by Mr Justice Kearns who on Friday delivered his judgment granting the strike off order.

In his decision, the judge noted findings of misconduct were made against Mr Lambert over failure to ensure compliance with his firm’s undertaking, of November 2006, to register a first legal charge in favour of ICS over property of Mr Lambert at No 9, Dunbo Hill, Howth, Co Dublin, bought as an investment.

Further findings included breaches of provisions of the Solicitors Acts by allowing a solicitor practise as a solicitor in MLS when that solicitor had no practising certificate in force.

The penalty for the misconduct was not addressed until July 2014 because of numerous assertions by Mr Lambert he would shortly be coming into money to make good the ICS’ losses but that “never happened,” the judge said.

The judge noted Mr Lambert was enrolled as a solicitor in 1999, lived at Dunbo Hill in Howth with his mother and had bought another property at Dunbo Hill, No 9. The ICS advanced a €450,000 loan in 2006 to him for that, to be secured by a first charge on the property in favour of ICS. In April 2010, ICS complained to the Law Society a solicitor’s undertaking provided by MLS to register that charge was not honoured.

The judge said the undertaking was signed by David Linehan and stated “bluntly” he was a partner in MLS when he did not hold a practising certificate in 2006 and was not named in the 2006 Law Directory as either partner or employee of the firm. Mr Linehan had said in correspondence in August 2010 he no longer worked for the firm.

The undertaking provided Mr Lambert was to mortgage the property at No 9 Dunbo Hill as security for the ICS loan and to clear an existing mortgage against the property. In July 2014, Mr Lambert indicated to the SDT the ICS monies were used to buy investment properties. As those purchases were financed by further mortgages from the ICS, the true explanation for what happened to the advance “remains even now unclear”, the judge said.

ICS later secured an order for possession of No 9 Dunbo Hill and has separate proceedings against Mr Lambert claiming judgment for the €450,000, the judge said.

The “only excuse” now offered by Mr Lambert was he suffered due to the economic downturn and his property investments fell into negative equity, leaving him unable to comply with the 2006 undertaking. Mr Lambert has also accepted it was “wrong” of him to allow Mr Linehan sign the undertaking and Mr Lambert accepted full responsibility for complying with the undertaking. Mr Lambert’s explanation he was unaware Mr Linehan had no practising certificate when signing the undertaking because Mr Linehan had “disappeared” to France for a year previously was “bizarre”, the judge said.

Rejecting arguments a supervised practise sanction would achieve the correct balance between Mr Lambert’s rights and the reputation of the solicitors’ profession, the judge said the ICS monies were loaned on foot of an undertaking which was “totally dishonoured”.

Undertakings are “critical” to the proper functioning of the solicitors profession, he said.

The court regarded breaches of them as “matters of the utmost gravity” as they put public trust in the solicitors profession at serious risk.

This was such a case, and all the more so because the solicitor was borrowing on his own behalf and was exclusively to blame for the breach, the judge said. This was not a case of a solicitor being let down by a client in an unexpected manner.

The judge said he also had serious concerns how the undertaking was provided by a person in Mr Lambert’s practise who had no practising certificate.

Mr Lambert’s explanation for the manner of the execution of the undertaking by Mr Linehan was “totally lacking in credibility”, he said.