A recent ruling in a case involving a solicitor is potentially of significance in considering the regulation of professionals. One of the most significant threats for a professional’s livelihood is the possibility of being struck from the professional register.
The High Court considered this in The Law Society of Ireland .v. Daniel Coleman  IEHC 162 (“Coleman Case”) where the Court clarified its power in hearing applications to strike off solicitors from the Role of Solicitors.
Based upon the relevant statutory provisions and the judgment in the Coleman Case, solicitors will have a greater chance of defeating an application of the Law Society to have their name struck off the Role if they appeal the findings of the Tribunal and not merely oppose the Law Society’s application to remove their name from the Role. In view of the common features of the statutory disciplinary models of professionals, the Coleman Case may apply to other professionals subjected to disciplinary procedures and not just solicitors.
The High Court in the Coleman Case found that the court can re-hear the solicitor’s appeal in full if there is an appeal of the decision of the Solicitors Disciplinary Tribunal (“Tribunal”) where a finding of misconduct has been made against the solicitor. However, where the solicitor does not appeal against the decision of the Tribunal and the Law Society applies to have the solicitor’s name removed from the Role of Solicitors, such an application will not be a full re-hearing of the proceedings before the Tribunal.
In 2010, following two separate hearings, the Tribunal made findings of misconduct against Daniel Coleman for causing or allowing a fictitious contract to come into existence in respect of a conveyancing transaction and for an alleged breach of an undertaking. In each instance, the Tribunal recommended to the President of the High Court that Mr Coleman’s name be struck off the Role of Solicitors. The Law Society subsequently brought an application to the High Court seeking an order striking off Mr Coleman’s name. Mr Coleman failed to exercise his statutory right to appeal the decision of the Tribunal and the High Court, having heard only the submissions from the Law Society, made an order striking Mr Coleman’s name from the Role.
Following the order of the High Court, Mr Coleman appealed the decision to the Supreme Court, arguing that the findings of the High Court were not sustainable in law. Due to a backlog of cases in the Supreme Court, the appeal was not heard until 2018. The Supreme Court overturned the decision of the High Court and the case was remitted back to the High Court for a re-hearing.
Both the solicitor’s appeal against a decision of the Tribunal and the Law Society’s application to strike off the solicitor’s name from the Role of Solicitors can be brought before the High Court simultaneously. If both the appeal and the Law Society’s application are brought at the same time, the High Court must:
- firstly, hear and determine the solicitor’s appeal which would include a full re-hearing of all the evidence that had been laid before the Tribunal; and
- secondly, if the appeal is unsuccessful, the High Court will hear the Law Society’s application to strike off the solicitor’s name from the Role.
However, in the event that the solicitor does not avail of their statutory right of appeal, the High Court’s jurisdiction is far more limited, as occurred in the Coleman Case. In order for a solicitor to challenge an application by the Law Society to have a solicitor’s name struck off the Role, the solicitor must prove that:
- the findings have no basis in law; and
- that no Tribunal acting reasonably and applying the correct legal principles could have reached the finding on the basis of the materials before it or that there was some procedural unfairness or error in law that was so great that it materially affected the outcome of the decision.
When considering an application to strike off the name of a solicitor from the Role of Solicitors, the High Court must balance the constitutional rights of the solicitor while protecting the public. When the Supreme Court heard Mr. Coleman’s appeal in 2018 (Law Society of Ireland .v. Daniel Coleman  IESC 8), Mr Justice McKechnie stated that the fundamental role of the High Court is to ensure that the judicial arm and not the administrative agency would ultimately be responsible for any findings of misconduct and the resulting sanction which followed. The High Court must be satisfied that:
- the Tribunal was entitled, as a matter of law to reach the finding which it did; and
- the court must be of the independent view that the decision to strike the solicitors name from the Role of Solicitors is a correct one.
Although the High Court can accept the recommendations and findings of the Tribunal, it is not obliged to do so if it has not satisfied itself that the findings are sustainable in law. The crucial point here is that this does not equal a full re-hearing of the case. Therefore, if the solicitor does not appeal the findings of the Tribunal, the High Court must satisfy itself that the findings of the Tribunal are sustainable in law based only on the findings themselves – no further evidence may be adduced. If the solicitor brings an appeal challenging a finding of misconduct, the High Court may look at all the evidence that came before the Tribunal in the first instance in a full re-hearing. The solicitor may cross-examine witnesses of the Law Society on appeal. In an application by the Law Society to strike off a solicitor, proving an error in law or procedure or demonstrating that the actual findings of misconduct lie outside the range of reasonable or rational decisions which could have been reached by the Tribunal is a much higher threshold to meet.