Solicitor Disciplinary Tribunal Decisions

Details for Seosamh O’Daimhin

Name

Seosamh O’Daimhin

Address

Devine Solicitors, 9 O’Rahilly Street, Nenagh, Co Tipperary

Date of Order

29/11/2010

Decision

In the matter of Seosamh O’Daimhin (otherwise Joseph Devine), solicitor, practising as Devine Solicitors at 9 O’Rahilly Street, Nenagh, Co Tipperary, and in the matter of the Solicitors Acts 1954-2008 [6260/DT106/09 and High Court record no 2010/84 SA]

Law Society of Ireland (applicant)

Seosamh O’Daimhin (otherwise Joseph Devine) (respondent solicitor)

On 15 July 2010, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he:

a) Caused or allowed a minimum deficit to arise on his client account of in or about €262,864 as at, on or about, 28 May 2008,

b) Failed to maintain proper accounting records in the client account of the estate of a named deceased person, in breach of regulation 12, and, in particular, failed to maintain a ledger card that recorded all transactions in the distribution of the estate and failed to record costs of €17,222.12 transferred to the office account,

c) Misappropriated and/or wrongly drew to the office account excess costs of in or about €54,676 from the same estate,

d) Caused a debit balance on the client account of the same estate of in or about €7,808 by making overpayments in that amount to beneficiaries of the estate,

e) Failed to maintain proper accounting records in the client account of a named client family, in breach of regulation 12, and, in particular, failed to maintain ledger accounts that showed the true financial position in relation to his transactions with the client’s monies, such that amounts totalling €38,912.10 debited to the ledger account were not written up,

f) Misappropriated and/or wrongly transferred to the office account costs totalling in or about €42,500 in the client transactions of the same client family, causing a deficit on the client ledger account in or about that amount,

g) Misappropriated and/or wrongly discharged VAT payments to the Revenue Commissioners out of the client account in the amount of €12,000 on 14 February 2008, €36,314 on 20 February 2008 and €18,140 on 29 February 2008, creating a deficit of €66,454 on the client account,

h) Wrongly debited costs and VAT of in or about €5,687 on 21 April 2008 in the client matter of a named file from the client account when there were no funds to meet the payment, and subsequently misappropriated and/or wrongly debited the same costs and VAT to the office account on 29 April 2008, 1 May 2008 and 20 May 2008, causing a total deficit of in or about €22,748,

i) Wrongly discharged a booking deposit of €10,000 in the client matter of a named file from the client account on or about 26 October 2007 and did not lodge an office account cheque to the client account to meet that payment because there were insufficient funds in the office account to meet the payment,

j) Wrongly drew a cheque of €300 on the client account for personal expenses, in breach of regulation 7(2)(b),

k) Wrongly caused or allowed bank charges to be debited to the client accounts in the two years ended 30 April 2008 amounting to a total of €897.61, causing a deficit of that amount on the client account,

l) Caused or allowed stamp duty funds of €3,779 received from the client on or about 21 December 2006 in a named client matter to be lodged to the office account and, on 4 January 2007, discharged stamp duty in that amount by way of client account cheque, causing a debit balance on the client ledger account, which debit balance increased following the payment of a Land Registry fee of €585 on 15 March 2007, also from the client account,

m) Failed to maintain proper accounting records in the client matters of a named client and, in particular, failed to maintain separate ledger accounts for each client matter dealt with by him, in breach of regulation 12(3)(a),

n) Misappropriated and/or wrongly drew costs allocated to a named client file of €3,630 on 15 January 2007 and €4,000 on 30 April 2007 from the client account, causing a debit balance on the client ledger account of €5,226.14,

o) Wrongly debited the amount of €6,755 in costs from the estate of a named deceased person, instead of the costs due of €675.50, causing a deficit of €6,079.50 on the client account, and subsequently wrongly transferred a further €1,500 to the office account debited to this client matter, increasing the deficit to €7,579.50,

p) Wrongly drew costs of €3,872 from the client account to the office account in a named client matter in circumstances where monies to cover costs and outlay were not received from clients, causing a debit balance of that amount on the client account,

q) Failed to maintain proper accounting records in the client matter of the estate of a named deceased person, in breach of regulation 12, and, in particular, failed to post payments of €7,186.15 to the beneficiaries to the ledger card, thereby failing to show a debit balance on the ledger card,

r) Wrongly lodged two receipts totalling €6,951.41 in the same estate directly to the office account in June 2007 and February 2008, in breach of regulation 4(1) and regulation 6(4)(a), and further wrongly drew costs of €2,325 to the office account on 13 February 2008, which costs had already been drawn in November 2006, causing a total deficit in the client ledger account of €9,276.41,

s) Misappropriated and/or wrongly transferred costs of €1,210 to the office account from the estate of a named client, causing a debit balance of €847.91 on the client account,

t) Wrongly lodged monies received in the estate of a named deceased person of €4,199.71 to the office account and failed to lodge further monies received, in the amount of €956.61, to the client account, in breach of regulations 4(1) and regulation 6(4), causing a total deficit in the client ledger account of €5,156.32,

u) Caused a net overpayment to be made from the client ledger account of a named client of in or about €3,850, creating a deficit in the client account in that amount,

v) Wrongly caused payments to be made from the client account to or for the personal benefit of his wife in the amount of €50 on 1 February 2008, €135 on 1 February 2008, €12,000 on 6 February 2008 and €639 on 18 March 2008,

w) Discharged personal expenditure or expenditure to his personal benefit from the client account, in breach of regulation 7(2)(b), and, in particular, mortgage payments of €2,000 on 22 January 2008 and 31 March 2008, payment of €400 to a supermarket on 22 February 2008, and a payment of €122 on 31 March 2008,

x) Wrongly caused payments to be made from the client account to or for the benefit of a named individual in the amounts of €1,300 on 22 January 2008 and 31 March 2008,

y) Through wrongful payment out of the client account to or for the benefit of the respondent solicitor, his wife and her cousin, a named individual as detailed above, contributed to a net deficit in the client ledger account of in or about €17,307.40,

z) Failed to maintain proper books of account for his practice, in breach of regulation 12(1).

The tribunal recommended by report dated 11 August 2010 that:

a) The respondent solicitor was not a fit person to be a member of the solicitors’ profession,

b) The name of the respondent solicitor should be struck off the Roll of Solicitors.

The tribunal made no recommendation in relation to costs.

Subsequent to the hearing of the Solicitors Disciplinary Tribunal, the respondent solicitor brought an appeal against the decision of the tribunal to make findings of professional misconduct on allegations 10(d), (g), (h), (i), (j), (o) and (t). The respondent solicitor claimed, among other things, that the tribunal had erred in law and on the facts in the manner in which it arrived at the above findings; that he had not acted dishonestly or fraudulently in connection with any of the matters; that his conduct resulted from confusion, distraction, inadvertence and error caused by ill health and bad management of his practice; and that he was suffering at the time of the matters under inquiry from acute anxiety and depression such that his capacity and judgement were impaired. The respondent solicitor claimed that the tribunal had failed to have adequate regard to the significance of missing documentation (among other things, cheque books, VAT books and records, and bank statements) and that, contrary to natural justice, the tribunal had failed to allow him to pursue the significance of the missing documentation by way of cross-examination.

When the matter came before the President of the High Court on 29 November 2010, he asked the respondent solicitor’s counsel on what statutory section he was appealing. Counsel stated that there was none and that he relied on the president’s inherent jurisdiction to hear the appeal. Counsel, under questioning from the president, confirmed that it was the respondent solicitor’s position that there was no prima facie case for the disciplinary tribunal inquiry in the first place. The president stated that he was satisfied that no real issues had been raised by the respondent solicitor to merit an appeal.

On 29 November 2010 the President of the High Court ordered that:

1) The name of the respondent solicitor be struck off the Roll of Solicitors,

2) The respondent solicitor pay restitution in the sum of €379,385.66 to the Compensation Fund of the Law Society,

3) The respondent solicitor pay the costs of the proceedings when these are ascertained,

4) The respondent solicitor pay the costs of the Solicitors Disciplinary Tribunal proceedings, to include witness expenses when these are ascertained.

On 29 November 2010, the President of the High Court also ordered that:

1) The recommendation of the Solicitors Disciplinary Tribunal made on 11 August 2010 be affirmed and adopted,

2) The respondent solicitor pay the costs of the High Court proceedings when taxed in default of agreement.

Subsequent to the making of that order by the president, the respondent solicitor has appealed against that order to the Supreme Court and the appeal bears record number 003/2011.