Tuesday 30 May 2017

'Unreasonable' solicitor withheld part of client's €100,000 damages settlement for legal costs - High Court

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Tim Healy

A solicitor had "no insight into his unfair and unreasonable behaviour" by withholding part of a client's €100,000 damages settlement towards legal costs which were eventually paid by his opponents in the case in any event, a High Court judge said.

Michael O'Sullivan, formerly principal of Michael O'Sullivan & Co Solicitors, Baggot Hall, Lower Baggot Street, Dublin, "clearly needs supervision", Mr Justice Paul McDermott said.

His former client was left at a loss for a considerable period and Mr O'Sullivan "showed no regret for any of his actions nor did he offer any indication that such behaviour might not be repeated in future", he said.

The judge confirmed a finding of misconduct against Mr O'Sullivan made by a Law Society Solicitors' Disciplinary Tribunal (SDT) that he deducted without agreement monies due to the client following the settlement of a personal injuries case in February 2004.  He also failed to provide written notification of what he (O'Sullivan) thought would be recovered in costs from the defendants in that case.

Mr O'Sullivan must only practise as an assistant solicitor in a partnership and under the supervision of another solicitor of at least ten years standing, the judge said. He has also to make restitution of €6,774 to his former client.

The judge said the client claimed he was being overcharged for the solicitor's services and was refused an explanation of how the fees were broken down.   The client said the defendant in his personal injuries action anyway agreed to pay the legal costs as part of the settlement.

The client also claimed undue pressure had been applied on him at the time to settle the case.   Mr O'Sullivan later demanded the client withdraw what he called "false allegations of professional misconduct".

Mr O'Sullivan retained €44,850 from the settlement, the judge said.

Following the complaint from the client and the Law Society's intervention, the actual costs due to Mr O'Sullivan were found to be €35,000 and recovered from the insurance company which represented the defendant in the original personal injuries case.  That money was then paid directly to the former client partly in lieu of the withheld amount.

After €3,000 actually due from the former client to Mr O'Sullivan was deducted, this meant the solicitor still owed €6,774 to the former client.

The judge was satisfied the SDT finding that Mr O'Sullivan should pay the €6,774 restitution was reasonable and supported by the evidence.  He also found a direction that he pay €10,000 to the Law Society's compensation fund was reasonable.

The judge said while the misconduct which Mr O'Sullivan was found guilty of by the SDT was very serious, it fell short of the more egregious forms of misconduct of fraud and dishonesty that might deserve a solicitor being struck off.

It was clear however that Mr O'Sullivan had dealt with the overcharging issue raised by his former client "in an unreasonable and unprofessional way", the judge said.

The judge noted Mr O'Sullivan brought an earlier challenge to the disciplinary inquiry into his conduct which was rejected by the High Court and Supreme Court.

He had more recently brought a case alleging parts of the the law governing solicitor conduct were unconstitutional  and in breach of the European Convention on Human Rights.  That case is still pending.

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