The Gazette 1958-61

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

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. 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 The following judgment was delivered by the Chief Justice on i8th July, 1958.