57 / 338
Solicitors refusing to issue Mr. Duggan's practising
certificate for the practice year 1958/59- The grounds
of Mr. Duggan's appeal to the Chief Justice and to
the Supreme Court included a ground that section 49
of the Solicitors' Act 1954 is repugnant to the Con
stitution and also on the general merits. The Chief
Justice dismissed the appeal on both grounds. The
Supreme Court allowed the appeal from the Chief
Justice on the grounds stated on their judgment hut
the constitutional issue was not argued before them
and the decision in the judgment of the Chief Justice
on this question therefore stands. Having regard to
the inadequate information given in the newspaper
summaries of the judgment of the Supreme Court the
Council have decided to print for the information
of members of the Society the judgments delivered
on the appeals and they are set out hereunder with
the permission of the Incorporated Council of Law
Reporting.
The following judgment was delivered by the
Chief Justice on i8th July, 1958.
This is an appeal by William L. Duggan against a direction
of the Incorporated Law Society to the Registrar of Solicitors
to refuse him a practising certificate for the current year.
I shall deal first of all with the ground of appeal that Section
49 sub-sections (i) and (2) of the Solicitors Act 1954 under
which the direction was given are repugnant to the Constitution.
It is submitted by Mr. Costello on behalf of the appellant
that the refusal of a practising certificate to a solicitor has the
same effect during the period when it is effective as would an
order for the removal of his name from the roll of Solicitors.
He submits accordingly that the judgment in the recent case
(In re James H. Gorman and The Solicitors Act 1954
(unreported)) applies and that I should hold that Section 49 (i)
and (2) under which the Society acted in this case are repugnant
to the Constitution as involving the administration of Justice.
Mr. McGonigal, in answer to this, points out that the
Solicitor's profession is only one of a number of callings in
which those who wish to carry on practice require an annual
certificate from some authority. The necessity in the public
interest so far as possible to ensure the honesty and integrity
of the members of the solicitors' profession obviously makes the
requirement of such a certificate desirable. Historically it has
been the practice to require such a certificate from the Registrar
of Solicitors. Section 44 of the Act of 1898 provides that if
the Registrar declines to issue a certificate application may be
made to the Lord Chancellor who, in the words of the Section,
" shall make such Order as seems to him just." It has not been
suggested that the provision which allows the Registrar to
decline to issue a certificate was inconsistent with either the
Constitution of the Irish Free State or with our Constitution.
Mr. McGonigal furthermore points out that the provisions as
to the procedure to be followed by the Society or the Committee
thfaugh whether they act in the exercise of their powers to give
a direction that a certificate be refused are very different from
those provided in relation to the functioning of the Disciplinary
Committee. It is not given the wide powers of the Disciplinary
Committee. He submits that in effect the Society, through its
Committee, merely screens the applications. This construction
of sub-sections I and 2 is supported by the provisions of sub
section 3 which enable an applicant who is dissatisfied with the
direction to refuse him a certificate to procure the immediate
issue of a certificate by lodging an appeal to the Chief Justice.
This, Mr. McGonigal submits, makes the effective decision that
of the Court. It is submitted in answer that the existence of an
appeal in the case already cited did not save the Sections which
were there held invalid. In my view, however, there is a
distinction between that case and this inasmuch as the decision
of the Committee to direct a refusal of a certificate is not final
in the sense that the decision of the Disciplinary Committee
to order the removal of a Solicitor's name from the roll is.
Apart from this the penalty, if such it may be called, imposed
upon a solicitor by a direction to refuse him a certificate is very
different from the removal of his name from the roll of
Solicitors. His name still remains upon the roll. He may renew
his application at any time. He is only deprived of the right to
practise for the current year.
I am of opinion that the direction of the Society to the
Registrar to refuse a practising certificate is not the adminis
tration of justice and accordingly hold that Section 49 sub
sections i and 2 are not repugnant to the Constitution.
It therefore becomes necessary to consider the other grounds
of appeal. These may be summed up as follows :—
(a)
that the refusal of a practising certificate is too severe a
penalty to impose in respect of the complaints against
the appellant;
(b)
that his explanations to the Society of the matters in
respect of which complaints were made against him
should have been accepted, and
(c)
that in view of his continuing discharge of his liabilities
he should receive the indulgence of the Court.
It seems to me probable that but for the question raised as
to the repugnancy of certain Sections of the Act of 1954 to the
Constitution in the cases of Gorman and O'Farrell, the Society
would most likely have followed up their action of obtaining
an Order under Section 17 of the Fifth Schedule to the Act by
moving to strike the appellant's name off the roll of Solicitors.
Instead, they have resorted to the provisions of Section 49.
In October last they called upon the appellant to give an explan
ation in reference to three matters. The first of these is a
complaint that he failed to account or pay over a sum of £1,300
to a client named Michael Mahon. The second is that judgment
was obtained against him for £1,620.8.0 and costs by another
client. The third is that in January 1954 he transferred portion
of certain trust funds, namely £1,830 3^% Exchequer Bonds,
to his own name in the Munster and Leinster Bank to secure
a personal overdraft.
The appellant did not deny any of the matters alleged against
him, nor did he deny that his conduct was wrong. He offered
as an explanation of his actions that he had inherited a very
large solicitor's business from his father, that he continued
the practice of mixing his clients' moneys with his own and
of making advances to clients of large sums of money which it
was often difficult and sometimes impossible to recover. He said
in evidence before me that his total indebtedness to the Bank
at the time when the Order of the High Court was made was
£21,000. He estimates his assets, including debts and costs
due to him, as £i 5,000.
Since then, despite his being deprived
of the services of his bank, he states that he has recovered
£15,000. He estimates his indebtedness to clients at about
£'5,ooo-£6,ooo. He claims that there is about the same amount
due to him. He pleads that if he is allowed to practise as a
solicitor he has reasonable hopes of getting his affairs in order.
Despite the fact that he cannot utilise the service of a bank,
he says that he still has an extensive practice. He has now paid
the sums of money due to Michael Mahon, satisfied the
judgment against him at the suit of Michael and Patrick Dwyer
and restored the trust moneys improperly transferred by him.
It surprised me somewhat that he should not have been more
precise than he was when giving evidence before me as to his