Burke & Burke, Re [1999] IEHC 257 (12th October, 1999)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Burke & Burke, Re [1999] IEHC 257 (12th October, 1999) URL: https://www.bailii.org/ie/cases/IEHC/1999/257.html Cite as: [1999] IEHC 257 [ New search ] [ Printable RTF version ] [ Help ] Burke & Burke, Re [1999] IEHC 257 (12th October, 1999) High Court In re Burke and Burke Carrying on Practice under the style of Frank Burke and Company and In re The Solicitors' Act 1954 and 1968 1991/12 SA October 1999 MORRIS P: 1. This matter comes before the Court as an Application to re-enter for hearing a motion which was originally dated the 16 November 1998. This Notice of Motion sought to restore Mr Frank Burke to the roll of Solicitors. The original Notice of Motion sought the following reliefs: An Order pursuant to Section 10 of the Solicitors (Amendment) Act 1960 restoring the Applicant herein to the Register of Rolls (This is a typographical error. The relief provided for in Section 10 of the Solicitors' (Amendment) Act 1960 provides that on application the Court shall have power to restore the Applicant's Solicitor to the Roll). The relevant provisions of Section 10 of the Solicitor's (Amendment) Act 1960 provides that the High Court shall have power to order the name of a Solicitor whose name has been struck off the Roll by order of the High Court under Section 8 of the Act or his name has been removed from the Roll under Section 9 of the Act to be restored to the Roll. The Section goes on to provide that on the hearing of the Application under the Section the High Court may refuse the Application or may order that the name of the Applicant be restored to the Roll and may provide for the costs and expenses of the Society. In particular subsection 4 of Section 10 (as inserted by Section 19 of the Solicitor's (Amendment) Act 1994) provides: "(4) Where, on the hearing of an Application under this Section, it is shown that the circumstances which give rise to the striking off the roll of the Applicant's name involved an act or acts of dishonesty on the part of the Applicant arising from his former practice as a Solicitor or that the Applicant was convicted of a criminal offence, the High Court shall not restore the Applicant's name to the roll, either conditionally or unconditionally, unless it is satisfied that having regard to all the evidence the Applicant is a fit and proper person to practice as a Solicitor and that the restoration of the Applicant to the roll would not adversely affect public confidence in the Solicitor's profession as a whole or in the administration of justice." The facts of this case can be summarised as follows: The Applicant is a man of fifty one years of age. He was admitted and enrolled as a Solicitor in the Easter Sittings of 1973. He practised under the style and title of Frank Burke & Co, Solicitors. There have been a number of occasions upon which the conduct of the Applicant has come under the notice of the Law Society. These are deposed to in the various Affidavits which have been filed in this matter and no dispute arises in relation thereto. The history of the Applicant in so far as the Law Society is concerned can be summarised as follows: In 1985 he was investigated by the Law Society and it was established that he had used client monies in breach of the Solicitor's Accounts Regulations and permitted a deficit to occur in the client account. As a result of this enquiry he was fined £20,000. This sum he paid although not within the time limit provided for in the Order. The Applicant acknowledges that he frustrated the original enquiry which led to the imposition of the fine and he sought to mislead the investigation conducted by the Law Society's Accountant. On the 5 December 1990 the Law Society applied to the Disciplinary Committee for an enquiry into his conduct and the Disciplinary Committee made a number of adverse findings against the Applicant. This report formed the basis of a subsequent High Court Application in which the Society sought the removal of the Applicant's name from the Register of Solicitors. The Applicant accepts that the delay in carrying out the investigations was due in part to the fact that he made the investigation difficult and, in the course of his Affidavit, he says that "The Situation was also compounded by the fact that the deficits arose in the client account because I had taken monies in a fashion that was grossly dishonest and compounded this dishonesty by failing to meet the issues head on which were raised by the Society's investigations." He goes on to accept that he was guilty of "deliberately concealing from the Society the true position in relation to his practice." He says that "The Society had to go to great lengths to conclude the investigation and incurred considerable expense because of my lack of co-operation". By Order of the 13 May 1991 the President of the High Court made an Order removing the Applicant's name from the Roll of Solicitors. It is stated, without contradiction, that in the course of giving Judgment the then President of the High Court expressed the view that he was "not imposing a life sentence". It is suggested that this indicated that it would be open to the Applicant to reapply to have his name restored to the Roll of Solicitors. A further incident occurred in or about the month of June 1994. The Applicant's spouse, Lorna Burke, is a Solicitor and a complaint was made that a Dutch National who was seeking legal advice and who called to Mrs Burke's office was received by the Applicant who passed himself off as being a qualified Solicitor. This matter concluded with the Applicant giving an undertaking not to enter into the offices of Burke & Company and making a contribution of £5,000 towards the Society's costs. The Applicant applies to have his name reinstated to the Roll of Solicitors but on a limited basis. He says that "In the circumstances I would not consider it proper to seek a certificate which would enable me to have control of financial matters at this juncture nor would I expect the Society or this honourable court to accede to such an Application. In support of his Application the Applicant says that he has borne all the fines and costs which were imposed on him and either through loans from his Mother in Law or otherwise he has paid out sums amounting to £143,866.74. He says therefore that there is nobody at a loss as a result of his conduct. He next submits that he has the support of all or at least the majority of his colleagues in the area in which he practices and has offered to the court the evidence of four highly reputable, long practising members of his profession who support his application to have him restored to the Register. Finally he says that he is now a more mature, responsible and reliable person and has given the court an assurance that he will not transgress in any way. He is contrite for his offences. He regrets the damage that he has caused to his wife and family and wishes for an opportunity to follow his profession so that he may support them. The Applicant's application is opposed by the Society on the grounds that the Applicant has demonstrated over the years that he is a thoroughly dishonest and unreliable person and that the restoration of his name to the Roll of Solicitors would do irreparable damage to the profession and would, in summary, make the profession a laughing stock in the community in which he practices. My attention has been drawn to the decision of the Master of the Rolls in "Application No 6 of 1983" heard in England on the 4 November 1983. In the course of his Judgment the Master of the Rolls Sir John Donaldson as he then was, says the following: "But the problem is this. The striking off of a Solicitor can have a punitive element, it can have an element of protection for the public but it always has an element of protecting the good name of the Solicitor's profession and the good name of the profession must be paramount. If maintaining the good name of the profession ultimately does some injustice to individuals who have broken the rules of that profession, and if that injustice is unavoidable, if the good name of the profession is to be maintained, that is something which I am afraid must be accepted." With great respect to the Learned Judge I am not prepared to accept that an injustice to an Applicant is acceptable if it constitutes an element of any judgment. I prefer to consider the issues that arise in applications of this nature in the following way: At the outset it must be accepted that the Applicant has an entitlement to work and to practice his profession as a Solicitor. This right he forfeits if it is demonstrated to the satisfaction of the court that circumstances arise in which it is proper that his name be removed from the Roll of Solicitors. That position remains so unless and until an application under Section 10 of the Act of 1960 is made to the court. In circumstances other than those provided for in Subsection 4 of Section 10 it would appear to be that the court is at large to consider the case in general. However, in circumstances in which Subsection 4 applies, that is to say where the Applicant's name has been removed from the Roll because of an act or acts of dishonesty on the part of the Applicant arising from his former practice as a Solicitor then restrictions are placed on the court and the court may not restore the Applicant's name to the Roll "unless it is satisfied that, having regard to all the evidence, the Applicant is a fit and proper person to practice as a Solicitor and that the restoration of the Applicant to the Roll would not adversely affect public confidence in the Solicitor's profession as a whole or in the administration of justice." It is clear that both of these elements are required to exist before a court may make an Order restoring the Applicant's name to the Roll. I am satisfied that this is a case to which Subsection 4 of the Act applies. I am satisfied that the circumstances which gave rise to the Applicant being struck off the Roll involved an act or acts of dishonesty on his part. Dealing with the second of the two provisions provided for in the Section, I am satisfied having heard Mr Moylan, Mr Gavin, Mr Molloy and Mr Keane that in the particular circumstances of the case the restoration of the Applicant's name to the Roll would not adversely affect confidence in the Solicitor's profession as a whole or in the administration of justice simply because the Applicant's conduct is now to a very large extent a thing of the past in the area in which he practised and has now been forgotten. I accept the evidence of these four gentlemen that the Applicant enjoys respect in the locality and is well thought off. I do not believe that the restoration of his name to the Roll would adversely affect public confidence in the Solicitor's profession or would affect the administration of justice. On the first of the two provisions I am, I regret to say, of a different opinion. I do not believe that the Applicant is a fit and proper person to practice as a Solicitor. I form that opinion based upon the fact that neither the Applicant himself nor the reputable Solicitors who he has called to support his application consider that he is a proper person to exercise control over money which may be entrusted to him by clients. I do not lose sight of the fact that the Applicant seeks only a limited certificate which would not involve his handling client's money or being responsible for it. However I believe that I accurately summarise the position by saying that neither he nor any of his witnesses consider that it would be safe for him to be in the position of controlling clients' funds. In these circumstances how can it be said that he is a "fit and proper person to practice as a Solicitor". I draw attention to the fact that the Subsection does not in any way differentiate between a solicitor holding a full certificate and a solicitor holding a limited certificate. In my view it is not open to the Court to draw any such distinction. Either the Applicant is a fit and proper person to be a practising solicitor or he is not. If he is then it is open to the Court to make the Order sought. If he is not a fit and proper person to practise as a Solicitor then it is not. I am satisfied beyond any doubt that there is no evidence upon which I could conclude that he is a fit and proper person to practice as a Solicitor. On the contrary all the evidence shows that he is not in as much as he is not fit to manage clients' money and therefore I conclude that it is not open to me to make an Order under Subsection 4. Accordingly I refuse the Order sought. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/1999/257.html