Tuesday 25 October 2016

Dearbhail McDonald: Legal reform affects us all and shouldn't be railroaded through

Published 04/12/2013 | 02:17

Thomas Byrne
Thomas Byrne

AS Thomas Byrne settles into a 12-year jail stretch (most likely eight with remission), focus has rapidly descended on the Law Society, the ruling body for the country's solicitors.

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Given the scale of Byrne's colossal ¿52m fraud, the skill and cunning his scheme required over long periods of time, could the Law Society have done anything to detect it at an earlier stage?

On the eve of major reforms to the legal sector, what confidence can the public have now that the Law Society has persuaded Justice Minister Alan Shatter to leave the financial investigation of solicitors' practices in the hands of the profession's representative body?

Last night, the president of the society warned that its ¿18m compensation fund could not wear more Thomas Byrnes.

And Mr Shatter says the State can not assume the responsibility of potential future liability for the breach of financial regulations by solicitors.

So where is the consumer in all of this?

Byrne first came to the attention of the society less than 10 years after he qualified.

In 2002, it ordered that Byrne should not be the sole signatory of cheques on his client account.

Byrne embarked on a borrowing spree in 2004, fraudulently drawing down multi-million-euro loans from various banks.

Only one bank raised a red flag about Byrne. In May 2005, the group chief legal officer of the bank complained that Byrne had failed to honour an undertaking on a property transaction.

That complaint triggered a fuller review of Byrne's accounts, and this time the society discovered a massive ¿1.7m deficit on his client. It also discovered that Byrne was using his client's moneys for his own purposes.

In October 2005, two investigating accountants pored over Byrne's practice but could find no evidence of multiple mortgaging of properties. Byrne went on to steal another ¿12.5m from four banks.

In May 2006, the society placed a special requirement on Byrne to submit two-monthly accountants reports. The reports showed no deficit and he went on to steal another ¿10m from three banks.

On foot of the society's investigations, Byrne appeared before the Solicitors' Disciplinary Tribunal.

In December 2006, the independent body fined him the maximum ¿15,000 and allowed him to continue practising.

Undeterred, or perhaps in desperation, Byrne continued his spree, fraudulently transferring the properties of friends and clients into his name and using the deeds as collateral for even more loans.

He also forged the signature of his colleague, Barbara Cooney, to steal ¿4.5m from Irish Nationwide.

Could the society have done more to monitor Byrne after the disciplinary tribunal censured him?

To its credit, the Law Society moved quickly when Ms Cooney blew the whistle on Byrne in October 2007.

And it faced, in Byrne, a formidable fraudster.

That provides little comfort to his victims and others who are unhappy with the way their complaints have been handled and the lack of compensation for the losses they suffered.

Although it is hard to credit, the solicitors' profession was one of the major victims of the financial crisis.

In a frenzied climate of slipping credit standards, solicitors found themselves in a centrifuge of lax regulation and a free-wheeling system of undertakings that benefited banks and their clients.

Only a small minority abused the system. But the entire profession paid the price in the form of an unprecedented (and persistent) insurance crisis, reputational damage, unemployment and paying for the sins of their solicitor brethren.

When Mr Shatter first promised reform of the legal sector, he announced that barristers and solicitors would be stripped of their right to self-regulate.

But now he has resiled significantly from that position.

Under amendments to the long-awaited Legal Services Regulation Bill, the Law Society will continue to regulate solicitors' accounts and investigate possible acts of fraud and dishonesty.

That is a major concession for the society and the 60 staff it employs in its regulatory division. It is arguable that the solicitors' profession has the expertise and incentive -- its fund pays out in cases of fraud -- to play a key role in regulation.

And you can see why the State is loath to take on the liabilities of the legal sector. This and other issues such as independence require extensive, careful debate.

It is regrettable that we are still waiting on Mr Shatter to unveil his amendments.

The legal services bill affects every man, woman and child: it is one law that we should not allow to be railroaded through the Oireachtas.

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