Wednesday 12 December 2018

Solicitor challenged over €246,000 fee is cleared of misconduct

Maura Derivan at the Solicitors Disciplinary Tribunal. Picture: Justin Farrelly
Maura Derivan at the Solicitors Disciplinary Tribunal. Picture: Justin Farrelly
Shane Phelan

Shane Phelan

A solicitor has been found not guilty of professional misconduct after a tribunal dismissed claims there was "no paper trail" for €246,000 in fees charged to a woman she represented in two medical negligence cases.

Five allegations of misconduct against Maura Derivan arising from her actions in relation to the late Ann Waters were rejected by a Solicitors Disciplinary Tribunal yesterday.

The findings came after Ms Derivan produced a copy of a handwritten document signed by Ms Waters, in which she agreed to pay fees of €200,000 plus VAT.

The solicitor, of Derivan Sexton & Co, in Carrick-on-Suir, Co Tipperary, was also cleared of allegations that she deceived Ms Waters's two sons, took advantage of their mother's vulnerability, and seriously delayed the probate of her estate. The case against the solicitor was heard following a complaint by Ms Waters's son William, who represented himself at the tribunal.

Ms Waters received a €2.2m payout in 2012 as settlement of two medical negligence cases in which she was represented by Ms Derivan, who was also the executor of her will.

Ms Waters was in poor health and receiving dialysis at the time of the settlement.

She died in 2014. Her family subsequently learned there was just €800,000 of the settlement monies remaining.

Ms Derivan told the tribunal that after the settlement, Ms Waters asked her to hold the money for her. She said Ms Waters would come to her office and request cheques when she required money.

In the period before her death she received 68 cheques totalling €578,000 from the solicitor. Mr Waters was shocked by this as he believed his mother lived a very frugal lifestyle, only shopping in Aldi and Penneys.

A further €143,000 was paid by way of cheque to four unnamed individuals, at Ms Waters's request. Ms Derivan would not reveal the names of the recipients for reasons of solicitor-client confidentiality.

Giving evidence yesterday, Ms Derivan said she believed the €246,000 fee was justified as it related to service provided for Ms Waters over a period of around 25 years.

The solicitor said Ms Waters was "abandoned" by the health service after sustaining serious life-changing injuries while giving birth. She said she lobbied to get Ms Waters the medical attention she needed, helped arrange loans for her and provided her with financial assistance.

Mr Waters said he was unaware of any agreement to pay fees and put it to Ms Derivan she had "scribbled" a solicitor and client agreement "in an effort to deceive the tribunal".

This was strenuously denied by Ms Derivan. The solicitor also denied that she or anyone else had forged Ms Waters's signature on the agreement.

Ms Derivan also said that at no stage did Ms Waters challenge the fee.

She told the tribunal she had no right to ask her client what she was doing with the cheques, which ranged in size from €5,000 to €45,000.

"It was your mother's money. She knew she didn't have a huge life expectancy. She said she was going to spend her money," said Ms Derivan.

In reaching its findings, tribunal chairman Justin Condon accepted Ms Derivan's evidence. He said there was no evidence of deception on her part or that she took advantage of Ms Waters.

Irish Independent

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