Supreme Court refuses to strike off solicitors

 

THE SUPREME Court has refused to strike off two solicitors who admitted 50 charges of gross misconduct.

The charges involved multiple serious breaches of solicitors’ regulations and operating secret accounts in which multimillion euro sums were lodged in a deliberate bid to evade tax.

The Law Society, in its first ever such appeal to the Supreme Court, had argued strike-off was justified in the cases of Henry Colley and Colm Carroll, who were the partners and principals in the firm of Roger Greene Sons, Bridge Street, Dublin.

Mr Carroll has retired and Mr Colley is still a solicitor.

Both had admitted operating secret accounts, one involving lodgements of at least €32 million made over a three-year period, and eventually made a €7 million settlement with the Revenue.

Yesterday, the Supreme Court, with Mr Justice Hugh Geoghegan presiding and sitting with Mr Justice Joseph Finnegan and Mr Justice George Birmingham, rejected the society’s appeal.

Mr Justice Geoghegan said the High Court decision by Mr Justice Liam McKechnie could only be reversed “if, as a matter of law, it was clearly incorrect” and that was not the case.

Mr Justice McKechnie had given a “closely reasoned” judgment in which he considered the relevant points, he ruled. Mr Justice McKechnie said the most critical factor in his decision not to strike off was because clients were not left with any liabilities. If there was any shortfall, he would have struck them off, he said.

The “ultimate test” was whether the lesser sanctions of the pair recommended by the Solicitors Disciplinary Tribunal, including suspension for one year and restrictions on their practice, would be enough to maintain public confidence in the solicitors’ profession and to do justice to the solicitors themselves, he added. “I think on balance it would,” he said.

In its appeal, the society, in submissions by Shane Murphy SC, argued that maintaining public confidence in the legal profession should have been the most important consideration in deciding the penalty, not the fact that no client was out of pocket.

The solicitors had admitted to the disciplinary tribunal that secret accounts, mainly involving payments of arrears of fees from health boards, were set up specifically to evade tax.

A Law Society inquiry later found €32 million was lodged between 2000 and 2003 to an Ulster Bank account and not disclosed to their own accountants. Practice accounts were forged to mislead the society’s investigators by claiming fees had been paid to barristers when the money was lodged to the secret account.

The disciplinary tribunal recommended the pair be suspended with restrictions on their practice but the society disagreed and applied to the High Court to strike them off.

Mr Justice McKechnie instead upheld the disciplinary tribunal recommendations, suspending them for a year and allowing them practise for a further three years only as assistant solicitors supervised by a society-approved solicitor. He also ordered they pay €50,000 compensation each to the society’s compensation fund and each pay 50 per cent of the society’s costs.

Mr Justice Geoghegan said the law required – in considering whether to strike off – the court must consider not just the need to maintain the good name of the profession but also any “real potential injustice” to the solicitors.

He said the solicitor members of the SDT which dealt with this matter had “considerable seniority and experience”, being former Law Society president Frank Daly and Ian Scott, a long-standing partner in Arthur Cox solicitors. The SDT had recommended “severe” sanctions but not striking off.

Mr Justice Geoghegan noted the numerous complaints against the solicitors were all serious, including mixing of personal and client accounts, operating undisclosed bank accounts and committing “flagrant breaches” of numerous regulations intended as essential protection for the public.

It seemed clear none of that was to defraud clients but was a “deliberate and elaborate” scheme of tax evasion. The solicitors obstructed the society’s investigation through giving false information and not disclosing bank accounts but later showed remorse, pleaded guilty and settled all issues with the Revenue.

Mr Justice McKechnie fully apprised himself of all matters and used “strong language” to express his abhorrence of those, the judge said. He also attached importance to the fact all outstanding taxes were paid.