Any solicitor should reasonably be glum now. No office will escape the consequences of Ireland’s financial troubles and, ignoring runes, we need only read the recent record of our neighbour, the UK, to see what those consequences might be.

Let’s start with the straightforward stuff; Thomas McGoldrick, a solicitor, stole £1.25 million from a client left paralysed (from the neck down) by a traffic accident. The judge sentenced him to ten years in jail. McGoldrick’s firm acted for the client in his personal injury action. McGoldrick met the client once and when the compensation was lodged in the client account McGoldrick treated it as his own, driving a Mercedes and Jaguar with personalised number plates and sending his children to expensive prep schools.

In the UK, as in Ireland, theft like this is, effectively, a charge on all solicitors; the Law Society Compensation Fund has to make good the loss.

Any normal person might go off the rails on hearing news like this. Take Esther Cunningham for example. She was defending her cousin on a dangerous dog prosecution but had to be escorted from court after kissing a solicitor, swearing at an usher and insulting the prosecutor while “fortified” with brandy. To her credit her legal representative said of her; “The forcible kissing of a solicitor is something that has been difficult to accept”. Who, among her colleagues, would not agree?

Distraction, even while remaining on the rails, so to speak, could also be easily foreseen following on such troubles. Consider how readily a solicitor, raffling a house, could forget to get a licence to run a lottery. The then-President of the Law Society , Paul Marsh warned his colleagues against launching prize draws because he feared that, as the recession deepened and house prices continued to fall, more people might be tempted to establish prize draws. He also feared that they could be used to conduct mortgage fraud or for money laundering. He pointed out that anyone found guilty of running an unlawful lottery faces a maximum sentence of 51 weeks in prison and/or a fine of up to £5,000 under the Gambling Act 2005.

One wonders whether Mr. Marsh was not himself distracted. Did he not know what many of his members were then doing? They were bribing people to get work for their firms.
A report described the practice in relation to the “miners’ scandal” in these terms;

“…some law firms charged fees to the miners out of their compensation awards. This “success fee” was often charged on the ground that the miner had been introduced to the solicitor by a claims handling company or trade union that had charged the solicitor to send the case to them.”

Bribing middlemen for work is the first step to full-time, big-time bribery. Get a scruffy office in Tottenham and become a bagman for Halliburton, delivering £100 million in bribes to Nigerian politicians. That’s a business model any Irish property developer would cheerfully take up. In this case it was a solicitor.

Strictly, as a business model it lacks something; the bribes are going in the wrong direction. Christopher Haan, a consultant solicitor knew that. Despite charging his client, Mr Abela £1.4 million in legal fees (on a share purchase), Mr Haan was clandestinely also advising a Mr Baadarani, who was selling his stake in the Italian company to Mr Abela. Mr. Haan got £400,000 from Mr. Baadarani.
“This is not a case of a technical conflict of interest,” Mr Abela’s, counsel told the court, “but of an intentional preferment of one client’s interests over another.”
Mr Haan’s actions, he said, were negligent, deceitful and a breach of contract towards Mr Abela, adding that simultaneously advising the buyer and seller of a company implied fraudulent or negligent misrepresentation.
Mr. Haan may have known what Mr. Seldon, another solicitor, did not know; that you can be pushed into retirement against your will (and will need every cent you can get).

Or, powerful vested interests lodge a complaint with your Regulator and, despite their tendentious objectives (the complainants were the opponents of the solicitor’s clients) you just survive the trial your Regulator puts you through.

Here in Ireland, being a Republic we, in theory, are no respecters of persons. Oops! Not so, perhaps.

In any event Michael Ford a client of Michael Napier, a former President of the Law Society lodged a complaint with the Law Society about Napier. Napier had represented Ford in a long case against Exxon Mobil, but Ford discovered that Napier’s firm had also been acting for Esso, a wholly owned subsidiary of Exxon.

Ford was not pleased about this. How could he now know that Napier did everything he could to vindicate his interests?

The complaint went nowhere fast. Only when it went to the Scottish Legal Complaints Commission did Ford get a hearing. The Commission found that the Law Society’s investigation was a systemic failure.

Too bad.

Well, there will be, allegedly, a Judicial Council. What complaints will it receive? Possibly not all it should.

It will not accept complaints which amount to an attack on the outcome of a case, nor should it. It will not accept complaints which are calculated to sap the spirit or determination of the judge. This latter class is of interest. After all, any complaint accepted by the Council would sap the determination of a normal person at the receiveing end of the complaint. In reality, only objective evidence of poor standards of judicial conduct will make it to the Council.

What would that be? It is hard to be dogmatic, but there are some events which, when reported, point almost invariably towards bad judicial behaviour as an explanation. (Oddly, and significantly, these events are often not reported by the media; most people try to get along without conflict).
In principle, a judge who issues a warrant for the arrest of the local Superintendent of the Garda Siochana is wrong. This is not to say that the Superintendent is beyond the law, just that the part played by the Garda Siochana in the normal functioning of the court’s business is supportive and could hardly be otherwise. It is more likely that a judge has become a lunatic than that the police function has become a maverick. (If the police function has become maverick, which can and has happened, the judiciary are, inevitably, complicit in that.)
What of other figures of power? Surely the Chief Executives of State bodies should not be permitted to cock a snook at the courts? Should they not be arrested?

Well, no.

What about legal practitioners? Should disruption of the court by defence counsel not be curbed by a timely arrest?

Well, no.

The actual problem, for the future, is to elicit complaints to the Council from the victims of such judicial behaviour. What Superintendent would not prefer to limit the unpleasantness already experienced and avoid a full blown investigation of an embarrassing clash with a judge? Would he/she receive support from the Commissioner in pursuing a complaint to the Council?

Probably not.

Finally, if there exists a Judicial Review list in the High Court consisting of cases from the work of one judge, is it not time to look at the judge, as well as his errors?

Here are some issues not addressed so far (in the papers I read).

(A) Quinn Insurance has a board of Directors. Sean Quinn is not on that board. The board has said nothing about the seizure of the company by the Provisional Administrators. Sean Quinn never stops talking about it and issuing press releases and public statements, including TV interviews.

Is he in fact in charge of Quinn Insurance?

This is possible. Under Section 27 of the Companies Act 1990:-

“…a person in accordance with whose directions or instructions the directors of a company are accustomed to act (in this Act referred to as “a shadow director”) shall be treated for the purposes of this Part as a director of the company…”

Does the Financial Regulator know anything about this that we don’t?

(B) Quinn Insurance has been accepting professional indemnity business from British solicitors. The mind boggles. Every now and again a wave of mortgage fraud sweeps Britain. Irrespective of whether the solicitors are complicit, the claims are numerous and large. It is very difficult to calculate the proper premium to match the risk. It is not easy, either, to refuse indemnity; the insured solicitors can fight.

When we insure our property, we conclude a contract of insurance with the insurance company.

The terms of the contract will generally be expressed as a “policy”, a particular name for an insurance contract. Sometimes it is not. There may be no actual policy. There may be a “cover note”. This may or may not refer to standard terms. If it does it is a matter of interpretation whether those “standard terms” form part of the contract.

This can cause difficulty for the insured person, but more often than not, it causes profound difficulties for the insurance company.

In Manor Park Homebuilders v AIG Europe (Ireland) Ltd. [2008] IEHC 174, the court heard evidence that the contract of insurance consisted of one word in an email.

This is good news for lawyers, deo gratias.

Generally, the liability of a solicitor (arising out of his/her professional practise) is unlimited. However, under Section 44 of the Civil Law (Miscellaneous Provisions) Act 2008, a solicitor may limit his/her liability to a degree not less than the current minimum sum for which a solicitor must carry insurance for (negligence) claims.

That figure is, currently, €1,500,000.

Litigation means a resort to the Courts for resolution of a problem. Wikipedia says the conduct of a lawsuit is litigation.

It also says:

“A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.”

We could go on and on and on about the topic, but this is a blog and we should limit ourselves to the practical.

A typical lawsuit has its origins in a Road Traffic Accident. (“an RTA”). A typical RTA will involve two motor cars. The drivers may have bona fide differing opinions of the causes of the accident. One driver may have sustained more damage than the other. These circumstances may drive the lawsuit.

There are other circumstances that drive a lawsuit. Greed can drive it. Desperation can drive it. Lack of scruples (a sub-set of greed) can drive it. Ambition can drive it.

Most lawsuits are settled. The judicial system is under-resourced to adjudicate on every lawsuit filed in court.

The statistics in the Annual report of the Courts Service of Ireland do not properly reflect this. Take the figures for the High Court civil cases in 2008. There were 22,861 proceedings issued in that year. Allegedly the court made 25,734 orders and there were 4,631 settlements. These two latter figures are categorized as “Cases disposed of”.

In truth the figures for commencement of proceedings and cases disposed of are unrelated. This is so notwithstanding that most proceedings would still be in being one year after being issued. The Court Service statistics take no account of cases commenced and then discontinued. These cases, more often than not, have been settled.

The litigants, with the assistance of the legal profession, settle their cases. (At lunch-time outside the Law Library).

The implications of this, for litigants, is profound. It implies the process is a rational process (on the whole). It is rational in the way a game of chess is rational. The rules and principles are sufficiently clear and well known that the outcome can be predicted with greater or lesser certainty. It is the function of the judges to preserve the integrity of the rules and, exceptionally, expand on them.

Nevertheless, litigation is uncertain. That may mean it is uncertain to the extent of 10% or 50%. The burden of proof in civil law is on the balance of probabilities. To win, a litigant must persuade a judge that what is alleged by that litigant is, on balance, more likely than what is contended for by the opponent.

Failure to settle a case, or failure to settle until “the door of the court” may be caused by a failure to assess where the balance in the case lies, or it may be evidence of a deferment of settlement to the day of trial to maximize the compensation discount a defendant would like to get from an injured plaintiff.

Whatever the case, those causes are in principle, also assessable.

The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

This is a post of clarification. No blog post can be a monograph, but sometimes “mature reflection” indicates that more needs to be said.

My post on the UK Law Society (seen HERE) is one such post.

May I be taken to be endorsing the Legal Services Board in any sense? Emphatically, no.

Do I approve of the concept of a regulatory system for solicitors? Reluctantly, yes.

Do I believe that the throwing of ashtrays at staff is a matter to be addressed in a regulatory system for solicitors? No.

Do I believe that the stealing of money from clients is a matter to be addressed in a regulatory system for solicitors? Yes.

A fundamental principle should apply; no person and no group of persons should be above the law. That law should be adequate to protect the legitimate interests of the public.

In addition, it is undesirable that there be a special process for applying the law to one group of persons by comparison with any other group of persons.

(It was the failure of the Catholic church and Irish society to adopt and apply these principles to Catholic priests that facilitated wrongdoing by priests.)

In any walk of life, therefore, be it that of lawyers or priests, the throwing of ashtrays should be challenged and, if appropriate, punished, in the same forum as is used for everyone else.

Why do I distinguish the stealing of clients’ money by solicitors from that principle?

I do so because when it happens the client is immediately at a disadvantage, relative to the solicitor.

The client has voluntarily transferred, or directed the transfer, of the money to the solicitor. On that ground alone the average policeman is immediately bemused at the beginning of any hypothetical investigation of a client’s complaint. It takes a specialised policeman, from a fraud squad, to conduct that investigation. In Ireland we have inadequate resources to investigate fraud.

As a practical matter, therefore, it is a necessary evil that the regulation of solicitors exist and that it apply with full force to the management of clients’ money.

I should declare an interest in this topic; under current regulations the Irish solicitors’ profession (I belong to that group) is the collective end stop for making good money losses by solicitors’ fraud or theft, as analysed previously by me HERE.

Needless to say I want a good, efficient, policeman working on the problem when it arises.

The UK Law Society has had a long history. It is now at a new low.

Having been cavalier about its “regulatory” function, it was forced to cede that responsibility to the Legal Services Board. The Board is one of those independent bodies to which there is always appended the word “independent” when it is mentioned by its spokespersons and mentors.

Verbal tics like that are the speech equivalent of body language signals.

Now the Law Society’s real owners are going to abandon it. I mean the big City firms. They do not want to be subject to a messy regime of regulation; they do not even want to be in charge of it.

They want their own system of regulation (which is not to say they never had that before).

In the UK the possibility of partnerships between solicitors and barristers is looming. The UK Bar is what is known as a sophisticated user of legal services. It knows full well the real system by which the professions are operated; it wants no “regulation” from the Law Society or its members, over members of the Bar.

Now the Law Society has “commissioned” a review of things by Lord Hunt of Wirral. He happens to be a solicitor and a former member of the Cabinets of Mrs. Thatcher and John Major.

He has, it seems, announced his brief thus:

Should the system of regulation be the same for a High Street solicitor as for a medium-size law firm? Should it be the same for a one-person practice as for a global law firm?”

Peculiarly, for a solicitor, he does not seem to have noticed the question has been asked and answered:

Yes”

Why should a partner in a global law firm who throws ashtrays at his staff not be brought to book like anyone else?

Why should he not be brought to account if he steals the money of a client?

What Lord Hunt probably means is that the Legal Services Board has not got the skill, experience or facilities to delve into the accounts of a big firm.

He probably already knows that, before all those features, there must come the will to act. That will has always been absent.