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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Law society of Ireland -v- Curneen [2012] IEHC 358 (30 July 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H358.html Cite as: [2012] IEHC 358 |
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Judgment Title: The Law society of Ireland -v- Curneen Neutral Citation: 2012 IEHC 358 High Court Record Number: 2012 32 SA Date of Delivery: 30/07/2012 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
2012 IEHC 358 THE HIGH COURT [2012 No: 32SA] IN THE MATTER OF THE SOLICITORS ACTS 1954- 2008 BETWEEN THE LAW SOCIETY OF IRELAND APPELLANT AND
MICHAEL CURNEEN SOLICITOR/RESPONDENT JUDGMENT of Kearns P. delivered on the 30th day of July, 2012 This is an appeal by the Law Society of Ireland ("the appellant") against a decision of the Solicitors Disciplinary Tribunal ("the Tribunal") dated 29th March, 2012 that no prima facie case of misconduct has been established to warrant an inquiry into the conduct of Michael Curneen, practising as Michael Curneen Solicitor, A Curneen & Son Solicitors, 3 Deansgrange Road, Blackrock, Co. Dublin ("the respondent"). This matter was first returned before this Court on 14th May, 2012 when it was adjourned on consent to 11th June and 18th June, 2012. By notice of motion the appellant seeks the following reliefs:
2. an order pursuant to section 7 of the Solicitors (Amendment) Act, 1960 (as substituted by section 17 of the Solicitors (Amendment) Act, 1994 and amended by section 9 of the Solicitors (Amendment) Act, 2002) directing the Solicitors Disciplinary Tribunal to hold an inquiry on foot of the appellant's application in this matter; 3. such further or other order as to this Honourable Court seems fit 4. an order for the costs of and incidental to this application. Affidavit of Seamus McGrath An investigating accountant, Mary Devereux ("the investigating accountant"), was appointed by the Society to carry out an investigation into whether there had been compliance by the respondent with the Solicitors Accounts Regulations 2001 to 2006 (as amended) and section 66 of the Solicitor's Act 1954 (as substituted by section 76 of the Solicitors (Amendment) Act 1994). Further to this investigation and report filed by the investigating accountant, further enquiries into practices at the respondent's firm were made. A meeting of the Regulation of Practice Committee ("the Committee") was held on 23rd June, 2011, when it was decided to refer the matter to the Tribunal. On 17th November, 2011, based on the affidavit of the investigating accountant sworn on 10th May, 2011, the Society applied to the Tribunal for an inquiry into the conduct of the respondent on the following grounds:
(b) that the respondent created 1 or more debit balances; (c) that the respondent recorded as a debit on the office side of one or more clients ledger accounts the amount of professional fees due to the respondent without first furnishing the bill of costs to such clients; (d) that the respondent recovered barrister's fees of €4,249.60 m a party and party bill of costs which were not paid by the respondent solicitor to that barrister; (e) that the respondent failed on one or more occasions to furnish a bill of costs to one or more clients as soon as was practicable after the conclusion of contentious business carried out by the respondent on behalf of such clients; and (f) that the respondent failed to maintain proper books of account which showed the true financial position in relation to the respondent's transactions. On 5th April, 2012 at a meeting of the Committee, it was decided to seek to set aside the decision of the Tribunal. Factors taken into account by the Committee were the admissions made by the respondent in an affidavit in respect of his lack of awareness of the Solicitors Accounts Regulations and breaches of same, and that the contents of the respondent's affidavit did not amount to a rebuttal of the Society's evidence but a plea in mitigation.
Affidavit of Michael Curneen, the respondent Client account deficit Debit balances created in breach of the Solicitor's Accounts Regulations Fees taken in advance
ii. In the case of Colum Doyle Estate, the respondent avers that a significant retainer was agreed and ultimately refunded to the client following resolution of all matters in connection with the estate. iii. Regarding the respondent's administration of the McNamara estate, the respondent states that fees were settled amicably with the client on a very generous discount. iv. In the Counihan matter, fees were taken on account by the respondent. The respondent wrote to the client in advance and the client agreed to this payment on account. A full refund of the fee was made in August, 2011. Fees taken when not approved by clients Fee notes not given to clients Non-compliance with the provisions of section 68 The respondent makes the points that the investigating accountant confirmed that the books of account had been maintained up to date and balanced and reconciled regularly. The respondent provides a detailed account of the transaction in relation to Bruffstream Building Company Limited. The respondent also avers that there was no deficit on client funds (other than €159.82 which was corrected), the accounting records did show the true financial position and there were no misleading entries in the accounting records. Further to the recommendation of the Chairman of the Regulation of Practice Committee, the respondent had taken advice in relation to practice management and has put the recommendations received in this regard into practise. RULING The Court acknowledges the respondent's admissions that there were aspects of the Solicitor's Accounts regulations that he was not familiar with. Having regard to the affidavit of Charles Russell, of Russell & Company Management and Software Consultants to the Legal Profession sworn on 14th June, 2012 the Court notes that the deponent advised the respondent on best practice in this regard and the respondent has confirmed that he is implementing the advice received to prevent such errors occurring again. The respondent accepted and acted further the recommendation of the Tribunal Chairman in this regard. The Court acknowledges the thorough investigation carried out by the Society into solicitor's practices however in this instance, for the above reasons and in light of the respondent's attitude and co-operation, an inquiry by the Tribunal is not warranted. I therefore affirm the finding of the Tribunal and dismiss the Society's motion with costs in favour of the respondent.
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