The Gazette 1958-61

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