The Gazette 1961 - 64

DECISIONS OF PROFESSIONAL INTEREST in clients' account—action against accountants. Lustombe v. Roberts and Pascho. (Megaw J. i8tA April, 1962) A solicitor practising on his own account kept all the books of account in his own hand. From 1952 onwards, and to an increasing extent in later years, he transferred sums of money, paid to his clients' account on behalf of his clients, into his office account, which was used for payment of moneys to or on account of clients, professional expenses, and private and personal expenses. By 1958 the deficiency was over £10,000. His income for tax purposes had been overstated from 1953 to 1957, and he paid tax on the overstated amount to the extent of £1,885. After discovery of the deficiency, towards the end of July, 1958, he reported the matter to the Law Society and on 8th January, 1959 the Disciplinary Committee, holding that he had failed to comply with the Solicitors' Accounts Rules arid had been guilty of conduct unbefitting a solicitor, ordered him to be struck off the Roll. An appeal to the Divisional Court was dismissed. From 1946 onwards the solicitor had employed a firm of accountants for the purpose of making the required annual certificate under the Accountant's Certificate Rules and the annual return of income to the Inland Revenue, one partner in the firm being responsible for dealing with his affairs. The solicitor claimed damages against the account ants on the ground that the sole or effective cause of his misfortune was the breach by the accountants of their duty to him. Megaw, J., said that the accountants' contractual obligations were in substance limited to acting with due and proper care as regards the submission of the annual accountant's certificate and the preparation and submission of the Inland Revenue statements. It was highly probable that, if they had carried out their duties in accordance with the required standard of care, including their duty (which was a duty to the public as well as to the solicitor) under the Account ant's Certificate Rules, the irregularities would have come to light much earlier and would have been prevented for the future. If the solicitor had been completely free from blame, he would be entitled to recover damages, in some measure, in respect of the breach of duty which would have been in part if not in whole the cause of his loss. If he was acting dishonestly in dealing with his clients' money he would not be entitled to recover from the account ants any loss of any sort arising out of or connected with his own dishonesty, and that would be so no matter how great or glaring the accountants' breach of duty to him or to the public might be. Applying the standard of proof laid down in Hornal v. Solicitor—deficiency

assistants who by their very nature tend to be transitory. Anybody entering this profession must be prepared for hard work. A solicitor's life is a hard one but it is a satisfying career for those who dedicate themselves to it. A solicitor who works hard can make a reasonable living but he will have earned it much more strenuously than his fellow citizens in many other walks of life. You will, inevitably, be faced with an apparent conflict of duties and come across many problems of ethics or etiquette in your early years where you may find yourselves in grave doubt as to what you should do or what advice you should give. I do want you to realise that the Law Society and the Council and the senior members of the profession are always more than anxious to help you in any way they can. After all, we were all inexperienced and young once and we all had the same problems to face so do not hesitate if you are bothered, to get in touch with Mr. Plunkett or with me or with any of the more experienced solicitors who you may know personally and I have little doubt that you will always find a ready and willing helping hand. I would ask you, one and all, to become members of the Law Society. It is the governing body of your profession and you can all, by joining it, help in its work by giving us your contribution which will always be valuable, however small it may be, at the outset. The subscription is very small even for a newly admitted solicitor. I have very much pleasure on behalf of the Council and the Society and on my own behalf in welcoming you into the solicitors' profession and I would wish you each and all a long, happy and successful career in the law. COUNTY OF TIPPERARY AND OFFALY (BIRR DIVISION) SESSIONAL BAR ASSOCIATION At the Annual General meeting of this Association held on the loth May, 1962, the President elected for the current year is Mr. Robert A. Frewen of Tipperary, the Honorary Secretary, Mr. John Carrigan of Thurles and the Honorary Treasurer, Mr. Martin T. Butler of Thurles. The committee is Messrs. Henry Hayes, Nenagh; P. F. Treacy, Nenagh, Michael O'Meara, Nenagh; Michael Black, Nenagh; J. J. Nash, Templemore ; J. C. Devitt, Roscrea; J. C. Reedy, Birr; Francis Murphy, Clonmel; James A. Binchy, Clonmel; Donal Binchy, Clonmel; Thomas Reilly, Clonmel; W. F. O'Connell, Tipperary; N. J. O'Donnell, Tipperary and Donal T. Ryan, Cashel.