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present financial position. He dealt only in round figures. He
did not distinguish between sums -which were due when access
to the Bank was denied to him and liabilities incurred since
then. When I asked him what he was earning he said that he was
drawing only £5 per week out of the office. I took this to mean
that he was applying or setting aside the rest of his earnings to
meet his obligations.
As I read the position there are still large sums of money
owing to clients. Presumably these clients arc not pressing
because they realise that their only hope is to allow the appellant
time to collect moneys due to him or to earn sufficient to enable
him to restore to them moneys which have wrongfully been
spent.
The Society in their notice of the 3Oth January give as one
ground for their decision to refuse a certificate that they did
not regard as sufficient or satisfactory the explanation given in
regard to the appellant's dealing with the sum of £1,300
belonging to Michael Mahon. Apparently they took the view
that the appellant should have been in a position to pay the
money to his client from the time that the money came into his
hands in 1946.
It seems to me indefensible that because two
brothers could not agree on the exact division to be made of
the sum of £2,600 which came into his hands that the appellant
should have retained under his control the whole of one
brother's share for over 10 years. When eventually a division
•was agreed upon he was unable to pay Michael Mahon's share
over. It has now been paid in instalments spread over more
than 12 months, the last sums being paid since this appeal was
taken. Similarly with regard to the sum due to Michael and
Patrick Dwyer. In that case it is not revealed when the moneys
came into the appellant's hands. Judgment was obtained against
him in August of last year. The amount due on foot of the
judgment was not fully paid until zSth January of the present
year. The Society express dissatisfaction with the appellant's
conduct in this matter on the ground that he " was not at all
material times in a position to satisfy his indebtedness to his
clients on foot of the moneys."
As regards the third matter of which complaint is made, the
appellant has admitted that he did transfer a sum of £1,830
3i% Exchequer Bonds to his bank as security for his personal
overdraft. It was only on the intervention of another solicitor
that he restored the stock and afterwards there was a long
delay, unexplained, before the relevant documents were sent
to the solicitor.
I am pressed by Mr. Costello to weigh heavily in the
appellant's favour that all these three matters are now cleared
up. He urges that if he is allowed to continue to practise the
appellant may and probably will straighten out all his affairs
whereas if he is unsuccessful in this appeal he will be unable
to do so.
In these circumstances what are the considerations which
should affect my decision on this appeal ?
In the first place
I must consider whether the Society acted reasonably in
refusing to accept as satisfactory the explanations offered to
them by the appellant in relation to the matters of which they
complain. The Society did not consider that the explanations
given by the appellant afford any excuse or justification for his
failure to discharge his obvious duty to pay over to his clients
their proper moneys when he should have done so, or for his
mishandling of trust moneys. The fact that he allowed his
affairs to get into such a mess, the confusion of clients' moneys
with his own, the obvious fact that he was living beyond his
means and doing so at the expense of his clients, these are the
things against which the Society must set its face. It is quite
impossible for the Society or for me to accept as a reasonable
explanation of a solicitor's use of his clients' money that this
happened because of bad business methods. Apparently the
appellant had handed over to his bank every thing of value
including his life insurances. He must, it seems to me, when
he did this, which must have been long before the 3151 July,
1956, the date of the Order of the High Court, have realised
what his position was. However he arranged with regard to
his own private financial affairs, he knew that one of his
primary duties as a solicitor was to see that his clients' moneys
were kept intact and readily available to be paid over promptly,
not merely on demand but without demand. It was further
more a grave dereliction of duty to use trust moneys to support
his overdraft. All this is so plain that it should not need to be
stated.
Accordingly, I must reject the submission that I should hold
that the Society ought to have considered the so-called
explanations as satisfactory. I am, however, asked to take the
view that to refuse the appellant a practising certificate is too
severe a punishment for his conduct. Secondly it is urged in
his favour that possession of a practising certificate had enabled
him so to retrieve his position that he is within measurable
distance of having his affairs in order. I am pressed with the
view that to refuse him a certificate will bring these efforts
to an end.
I am, I confess, much impressed by the efforts the appellant
has made under considerable difficulties, of his own creation,
it is true, although I would have preferred that he had pro
duced his books to support his evidence as to figures.
I am
somewhat at a loss to understand how he was able satisfactorily
to handle sums of money amounting, as he says, to over
£15,000 received and paid out in two years without the assist
ance of a bank. I find it difficult to understand how a solicitor's
business can be run at all in these circumstances. It is suggested
that given a chance he may within a reasonable period discharge
all his present obligations. The impression on my mind from
his evidence is that he hopes to meet his undischarged obli
gations to other clients by instalments as he has done in the
cases considered by the Society.
The only reason why I
would be disposed to grant an adjournment would be to
enable him to discharge these obligations. If the Society had
indicated that it would be permissible to overlook what has
happened in order to achieve this end, I would have seriously
considered acceding to Mr. Costello's eloquent plea. I am not
saying that I would yield to it because I cannot but take a very
serious view of the matters which led the Society to take
action.
In view of the Society's attitude, of which I am not
to be taken as complaining, I regret that I cannot see
my
way
to do so.
The following is the judgment of the Supreme
Court delivered by the President of the High
Court on i4th November, 1958.
Section 49 of the Solicitors Act, 1954, provides that in
certain circumstances the Incorporated Law Society may
direct its Registrar to refuse to issue a Practising Certificate
to a Solicitor. This certificate is essential and without it a
solicitor cannot function or carry on his business. The Solicitor
in this case Mr. Duggan applied for a certificate for the year
1958 and was refused by the Registrar under the direction of
the Society. Against that refusal he appealed, in accordance
with the provisions of the Act, to the Chief Justice.
The
Chief Justice heard his appeal in July last and refused it. From
that refusal the Solicitor now appeals to this Court.
The circumstances in which the certificate was refused in
the first instance were briefly these. In respect of three matters
arising, or rather coming to a head, in the year 1957 the
Society had cause for complaint as to the conduct of Mr.
Duggan. The first of these in point of time was in relation to
two clients Mr. and Mrs. Kane Smith. He acted as their
Solicitor and was also sole trustee of their marriage settlement.
In October 1956, they instructed Mr. Lanigan, Solicitor, to
write to Mr. Duggan requiring him to hand over all their
papers and documents.
There were moneys due to Mr.
Duggan for costs and in respect of other matters, and a
54