Elio Malocco, a solicitor who has served a jail sentence on fraud charges, has taken a High Court challenge to a report which recommends he be struck off the roll of solicitors.
Mr Malocco was given leave by Mr Justice O Caoimh yesterday to seek an order quashing the findings and report of the Law Society's disciplinary tribunal dated February 20th. He was also given permission to seek declarations that certain provisions of the Solicitors (Amendment) Act of 1960 are unconstitutional.
The disciplinary tribunal's report recommends that Mr Malocco, of Leopardstown Avenue, Carrickmines, Co Dublin, who served time in prison for defrauding the Irish Press group of newspapers, be struck off the roll of solicitors. In his judicial review challenge, Mr Malocco will argue that the tribunal failed to follow fair procedures. He will submit that the tribunal was guilty of inexcusable or excessive delay in beginning the purported inquiry into his conduct and/or acted unreasonably in acceding to the application for an inquiry in circumstances where there had been inexcusable or excessive delay. He claims the delay prejudiced proceedings.
It is also submitted that Mr Malocco was not given access to relevant documentation in the possession of the society; that the tribunal did not appoint or furnish him with any or adequate means to appoint counsel; that the tribunal proceeded with the inquiry in circumstances where it knew he was impecunious and unable to retain full legal representation; and that the tribunal's refusal to adjourn the proceedings to allow him to consider aspects of the "voluminous evidence" adduced against him was unreasonable and unfair.
Mr Malocco, in an affidavit presented by his counsel, Mr Ben O Floinn, said he was admitted to practice as a solicitor in 1977. Shortly afterwards, he established a practice under the title of Malocco and Killeen. This business continued until September 1991.
On September 26th, 1991, an accountant, Mr Tim Bolger, attended the offices of the firm and requested sight of the books and accounts. Mr Malocco said Mr Bolger had told him he had been appointed by the registrar of the Law Society to investigate his affairs. The investigation arose out of a complaint made against him by a client. Mr Bolger was given access to the books and accounts.
In the years following the original complaint, a number of claims were made to the society's Compensation Fund Committee. Despite requests, Malocco was not consulted about the merit of those claims or invited to make submissions in relation to them. Consequently, he was a "stranger" to the payment of large sums of money by the committee to various claimants.
Malocco said he never acknowledged that those claims were properly made or that the sums were actually owing.