Murphy -v- Law Society of Ireland Neutral citation 2010 (IEHC) 175. High Court Judgment was delivered on May 10th, 2010, by Mr Justice Nicholas Kearns.
Judgment
The term “former solicitor” covers the concept of a person who was a solicitor but who is no longer a solicitor because his or her name has been struck off the Roll of Solicitors, and the High Court retains jurisdiction to make orders affecting the solicitor, for example, those affecting his or her assets.
Background
The issue arose in relation to Michael J Murphy, formerly practising as M J Murphy Company at Lower Salthill, Galway.
Following the making of an order to strike him off the roll, the court then proceeded to make further orders.
The president of the High Court, Mr Justice Nicholas Kearns, invited both the Law Society and the respondent solicitor to make submissions in relation to the issue as to whether, when the High Court struck a solicitor off the Roll of Solicitors, it then lost jurisdiction to make further orders.
Mr Justice Kearns said that unfortunately, it had not been unusual in recent times for solicitors to have multiple complaints of a serious nature brought against them.
If the initial complaint led to the solicitor being struck off, what was to happen to any other complaints which were working their way through the Solicitors Disciplinary Tribunal or had been dealt with the tribunal but had not yet made their way to the High Court, he asked.
He said that the question of a solicitor who resigned rather than face certain allegations was different, in that the tribunal would not process an application to come off the roll if there are outstanding disciplinary matters pending.
The need for clarification was manifest, Mr Justice Kearns added.
It could not be in the public interest that a particular complaint could never be addressed in public because the solicitor complained against had been struck off.
Counsel for the Law Society argued that if the solicitor was on the roll when he or she engaged in the conduct in question, the tribunal and the court would retain jurisdiction even if he or she was struck off in the interim.
Otherwise the solicitor would enjoy immunity from answering for such conduct merely because his misconduct in another matter had led him to being struck off.
Counsel for the respondent submitted that, under the wording of the Solicitors Acts 1854-2008, once a solicitor was struck off he or she was no longer subject to the jurisdiction of these Acts.
Decision
Mr Justice Kearns pointed out that the definition of a “solicitor” in section 3 of the Solicitors (Amendment) Act 1994 included “a former solicitor or a deceased solicitor unless the context otherwise requires”.
Bringing a purposive interpretation to the definition of “solicitor” contained in the Act of 1994, the inclusion of “former solicitor” must be taken as including a solicitor who had met the qualifying requirements and who was on the roll but who is no longer on the roll.
He referred to section 5 of the Interpretation Act 2005, where it states that a provision “shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole”.
The submissions of the Law Society were correct, and the term “former solicitor” on its plain meaning was broad enough to cover the concept of a solicitor whose name was on the roll but was no longer, due to it being struck off.
The full judgment is on www.courts.ie
Paul Anthony McDermott BL appeared for the Law Society; Edmund Sweetman BL appeared for the respondent.