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correspondence ensued in the course of which a financial
adjustment was arrived at. Mr. Duggan had not, however,
handed over the papers by June 3rd 1957 and on that date
Mr. Lanigan wrote to the Society enclosing a copy of the
correspondence and complaining of the fact that the papers
had not been handed over. The correspondence disclosed that
portion of the trust funds, viz., £1,830 worth of 3-}%
Exchequer Bonds, which had stood in the sole name of Mr.
Duggan as trustee, had been transferred into the names of his
bank's nominees. At the time of Mr. Lanigan's letter these
funds had been replaced and the final adjustment of accounts
showed that Mr. Duggan was owed a sum of £119.13.6.
The second matter in point of time was in relation to two
clients Michael and Patrick Dwyer. On I4th August 1957
they obtained judgment against Mr. Duggan in the High
Court for £1,620.8.8 and costs in respect of moneys received
by him as their Solicitor. At the time the certificate was
refused Mr. Duggan had succeeded in paying £1,473.9.11.
By the time the matter came before the Chief Justice the whole
amount of the judgment, apart from costs, had been paid.
The third matter in point of time was in respect of a client
Michael Mahon. On October 3Oth 1957 he wrote to the
Society complaining that Mr. Duggan had £1,300 belonging
to him for a period of over ten years and that he could not get
any satisfaction. At the time the Certificate was refused
Mahon had been paid sums on account leaving a balance due of
£396.12.11., and by the time the matter came before the Chief
Justice this balance had been discharged.
Mr. Duggan was, in accordance with the provisions of the
Act, asked by the Society for an explanation of his conduct
in respect of each of these matters. He offered an explanation
by letter in the case of the Dwyers and Mahon and by letter
and orally in the case of the Kane Smiths.
In the case of these last mentioned clients his explanation
was that he had been requested by his Bank Manager to transfer
the Exchequer Bonds to the bank's nominees, apparently by
•way of security for an overdraft; that he did not think that
the bank would use the stock;
that he admitted he was
wrong in making the transfer ;
that
prima facie
it appeared
to be a conversion by him of trust funds, but that he never
had any intention of converting them and did not at the time
realise or appreciate that that was what the transaction
amounted to; and that the funds had been replaced and any
other loss would be made good. He was sending on the Kane
Smith documents to Mr. Lanigan and was apologising for
the delay. He did so, in fact, on July ist, 1957.
In the case of Michael and Patrick Dwyer his explanation
was that the Society were already aware of the circumstances
and that he could add nothing to what he had already told
them. He said that the amount due to these clients had been
originally greater than the amount of the judgment and had
been reduced by him; and that since the judgment he had
made further payments and had made arrangements for the
discharge of any balance due which were satisfactory to the
Dwyers.
In the case of Michael Mahon he explained that in or about
September 1956 he had furnished an account to his client
shewing a balance due of£1,386 including interest; that he had
correspondence with Mahon's Solicitor with regard to payment
indicating how and from what source he proposed to make
payment;
that he had paid £700 on account out of that
source—a good debt due to him—and would be able to pay
the balance of £686 out of the same source. He said that the
fact that the moneys remained so long in his own hands was
in no way due to his own default or neglect.
He said that the delay was due to the fact that Mahon and
his brother could not agree as to how a large sum to which
they were both entitled would be divided between them;
that he had offered to put the whole amount into court;
and that he had been dissuaded from doing so.
In relation to all three matters, and by way of general
explanation he described the circumstances under which his
solicitor's business had been acquired by him and carried on.
Reference will be made to this matter later on.
The Society considered that these explanations were not
satisfactory and, on Mr. Duggan applying for a practising
certificate for 1958, they in accordance with the provision of
Section 49 of the Act directed the Registrar to refuse it.
We consider that the Society had good cause to complain
of the conduct of Mr. Duggan in relation to each of these
three matters, and to consider that in each case he had failed
to give
them an explanation which they could
regard as
sufficient and satisfactory.
Although the explanations appear to have been candid
enougn and, in a sense, as satisfactory as the stubborn facts
would allow, the Society had, therefore, ample jurisdiction to
apply the provisions of Section 49 of the Act and to direct
the Registrar to refuse to issue Mr. Duggan with a practising
certificate. When considering whether a certificate should or
should not be issued the Society should, however, take into
account all the relevant circumstances existing at the time tne
decision has to be made, having due regard to :
the interests
of the public ;
the interests of the profession ;
the interests
of the clients of the solicitor in question ; and the interests of
the solicitor himself. No attempt should be made to lay down
a rule which should be applied to all cases irrespective of
individual circumstances. We are not suggesting that any such
attempt was made by the Society in this case but wish to make
plain, what is indeed obvious, that each case must be decided
on its own peculiar merits.
It is hardly necessary to add that when the matter has to be
considered on appeal the same considerations apply.
In this case Mr. Duggan inherited his solicitor's business
from his father.
It was an old established country practice
run on lines, as regards accountancy matters, that left much to
be desired. No separate banking accounts were kept in respect
of clients' moneys and the firm's moneys. Advances were
made by the firm to clients on account of moneys to become
due to them in respect of estates to be administered, sales to be
completed, and otherwise. No adequate or proper accounts
were kept in the office. Mr. William Duggan carried on
apparently in much the same fashion until some years ago
matters got into confusion. Clients owed him moneys which
he could not immediately collect, while he owed other clients
moneys which he could not immediately pay. As a result of
something which does not appear in the evidence the Society
took action under Clause 17 of the Fifth Schedule to the Act
and applied to the High Court for an Order that no banking
company should, without leave of the Court, make any
payment out of a banking account kept by such company in
the name of Duggan or his firm. The application was granted
and the Order sought was made on July 3ist, 1956.
Since
then Mr. Duggan has not been able to operate any bank
account.
On the hearing of the appeal before the Chief Justice Mr.
Duggan gave oral evidence and submitted himself to cross-
examination by the Society's Counsel as to his affairs and
conduct.
He explained that since his bank account was
"frozen" he had succeeded in getting in £15,000 of moneys
due to him by clients which he had used to discharge his
obligations to other clients. He said that there was about
£6,ooa still due to him and about the same amount due by
him to clients ; and that he owed the bank about £5,000 over
and above the securities they held. He said that he hoped to
pay off his outstanding liabilities to clients inside six months.
He had a good practice which he was carrying on with the aid
of an Assistant and from which he drew only £5 a week for
his own use. No attempt was made on cross-examination to
challenge his credibility or
bona fdes.
55