Court of Appeal quashes 10-year suspension order as disproportionate and procedurally flawed under Solicitors Act 1960.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 217

RECORD NO. 237/2015

FINLAY GEOGHEGAN J.

PEART J.

HOGAN J.

BETWEEN/

THE LAW SOCIETY OF IRELAND

APPLICANT/RESPONDENT

- AND–

PATRICK E. CALLANAN

RESPONDENT/APPELLANT

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 21ST DAY OF JULY 2017

Background

1. The appellant is a solicitor against whom complaints of very serious professional misconduct were made to the Complaints and

Client Relations Committee of the Law Society (“the Society”) by a solicitor with whom he practised in partnership over many years.

The appellant made full admissions of guilt before that committee in respect of the misconduct complained of.

2. Those acts of misconduct fall into two categories. Firstly, in 2004 he provided to three financial institutions a false certificate of

earnings in respect of his sister, as well as a false confirmation to two such institutions that she was employed as a law clerk in his

firm, in order to assist her in obtaining a loan to purchase a house upon her return from the United States, in circumstances where

she was never so employed. Secondly, having purchased a property himself in 2004 with a loan from Ulster Bank secured on that

property, he in 2005, 2006 and again in 2007 gave a number of solicitors’ undertakings to his partner to sign in relation to the

property already purchased, to facilitate further loans from other lending institutions on the strength of those undertakings, all with a

view to obtaining funds with which to purchase two investment properties in Shanghai. His partner signed those undertakings not

having been made aware of their improper purpose. The monies were drawn down by the appellant and the properties in Shanghai

were purchased.

3. The brevity with which I have summarised these complaints should not be considered to disguise or understate the egregious

nature of the appellant’s misconduct which is evident from the very thorough description of events in the papers before the Court, or

the devastating effect of that misconduct on his partner when he discovered it some years later. His partner was of course exposed

to a very significant potential personal liability to the lending institutions on foot of the undertakings which he had unwittingly signed

at the appellant’s request.

4. As it happens, the properties in Shanghai were sold with the appellant’s cooperation with the result that no lending institution or

his former partner has suffered a financial loss arising from the undertakings. The proceedings before the Solicitors’ Disciplinary

Tribunal were adjourned from time to time at the appellant’s request to enable him to make arrangements to have the Shanghai

properties sold. It is also the case that no financial loss arose on foot of the false certificates of earnings and confirmation of

employment provided by the appellant in order to assist his sister to purchase a house.

The Disciplinary Tribunal’s inquiry and report

5. Pursuant to its power under s. 7 of the Solicitors (Amendment) Act, 1960, as substituted by s. 17 of the Solicitors (Amendment)

Act, 1994 the Society made application to the Disciplinary Tribunal for an inquiry into the appellant’s conduct. Having concluded that

a prima facie case for an inquiry existed, the Tribunal held an inquiry involving the taking of oral evidence and hearing legal

submissions on a number of different dates during the period March 2011 and August 2014.

6. At the conclusion of its inquiry the Tribunal issued a Report dated 28th October 2014 to the High Court as provided for by s. 7 (3)

(c) of the 1960 Act, as substituted by s. 9 of the Solicitors (Amendment) Act, 2002.

7. Section 7(3)(c) of the 1960 Act provides:

“ … (c) On completion of the inquiry the Disciplinary Tribunal shall specify in a report (which shall include a verbatim note

of the evidence given and submissions made) to the High Court:-

(i) the nature of the application and the evidence laid before them,

(ii) the finding made on each allegation of misconduct and the reasons therefore,

(iii) any other matters in relation to the respondent’s solicitor which they may think fit to report,

(iv) in case they find that there has been misconduct on the part of the respondent’s solicitor and they have not

made, and do not intend to make, an order under subsection (9) of this section:-

(I) their opinion as to the fitness or otherwise of the respondent’s solicitor to be a member of the

solicitor’s profession, having regard to their findings, and

(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to

their findings, to any finding of misconduct on the part of the respondent solicitor previously made by

them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any

order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor,

and in that case the Society shall bring the report before the Court.”

8. In its Report the Tribunal considered the legal principles applicable to what penalty ought to be imposed on the appellant, including

that of proportionality, by reference to legal authorities to which the parties had referred during legal submissions. It considered the

question also as to what if any credit ought to be given to the appellant in respect of mitigating factors such as his early admission of

guilt, and his cooperation in relation to the sale of the Shanghai properties which ensured that no party was at a financial loss doe to

his misconduct, and in addition that there was no loss arising as of the date of the Report from the loan obtained by his sister by

virtue of the false certificate of earnings and employment that he had provided. It appears that her mortgage repayments were at all

times up to date.

The Tribunal’s Recommendation as to sanction

9. The Tribunal’s Report concluded as follows:

“The Tribunal is of the view that credit should be given to solicitors, who, despite having committed egregious acts of

misconduct, do cooperate fully upon those acts being discovered, and at no cost to any other person remedy the

situation. The Tribunal does not wish to state that there may not be instances where despite all attempts at amelioration,

the conduct is so outrageous that the only possible recommendation is to strike-off the respondent solicitor, but the

Tribunal does not believe that this is one of these cases. The Tribunal fully recognises the absolute distress that the

respondent solicitor’s partner has suffered as a result of the respondent solicitor’s actions, but is of the view that if the

respondent solicitor had not fully cooperated and/or remedied the damage his actions had caused, his partner and the

Law Society’s distress would have been ultimately far greater, and therefore the respondent solicitor must be given credit

for his actions in remedying the misconduct.

Accordingly, this Tribunal does not propose to recommend to the President of the High Court that the name of the

respondent solicitor be struck off the Roll of Solicitors but not without considerable misgivings. Placing his partner in the

invidious position in which he found self was misconduct of the most serious kind and deserves severe punishment.

However, the Tribunal is of the view that this punishment can be achieved without resorting to the ultimate sanction,

thus encouraging solicitors in similar circumstances to co-operate fully with the Law Society and other complainants to

ensure that that they are misconduct is remedied insofar as it can be.

The Tribunal therefore recommends that:-

1. The respondent solicitor be given a limited practising certificate to practise as an assistant solicitor with a

solicitor of not less than ten years standing;

2. the respondent solicitor must never be given cheque signing rights over any client account; and

3. the respondent solicitor when seeking employment as a solicitor must furnish any prospective solicitor and

employer with a copy of these findings.

In imposing these sanctions the Tribunal has taken account of the principles set out in O’Carroll and Colley, and the

necessity for the decision to be proportionate and appropriate.

In addition, the Tribunal will impose a fine and direct that a contribution towards the costs of the Law Society be paid.

We will now make formal findings.

The Tribunal having considered the submissions made on behalf of the applicant and on behalf of the respondent solicitor

in regard to penalty and costs is of the opinion that it is not appropriate and has not made and does not intend to make

an order pursuant to section 7 (9) of the Solicitors (Amendment) Act 1960, as amended

AND instead by Order is directing the Law Society of Ireland to bring the Tribunal’s Report in respect of this application

before the High Court

AND the opinion of the Tribunal as to the fitness or otherwise of the respondent solicitor to be a member of the solicitors’

profession and our recommendations as to the sanction which, in our opinion should be imposed on the respondent

solicitor are as follows:–

(i) that the respondent solicitor not be permitted to practise as a sole practitioner or in partnership. That he be

permitted only to practise as an assistant solicitor in the employment and under the direct control and supervision

of another solicitor of at least 10 years standing to be approved in advance by the Law Society of Ireland;

(ii) the respondent solicitor must never be given cheque signing rights over any client account;

(iii) the respondent solicitor when seeking employment as a solicitor must furnish any prospective solicitor employer

with a copy of these findings;

(iv) that the respondent solicitor pay the sum of €5000 to the Compensation Fund;

(v) that the respondent solicitor pay a sum not in excess of €8,000 as a contribution towards the whole of the

costs of the Law Society of Ireland;

(vi) that the respondent solicitor pay the measured expenses of €2000 to [his former partner] in respect of his

attendances before the Tribunal.”

The Society’s notice of motion and grounding affidavit

10. The Society brought the Tribunal’s report and recommendation as to sanction before the President of the High Court by its notice

of motion dated 10th February 2015 pursuant to s. 7(3)(c)(iv) of the 1960 Act, as substituted and amended. Apart from seeking an

order for the costs of the Disciplinary Tribunal proceedings, the Society sought an order that the name of the appellant be struck off

the roll of solicitors, notwithstanding the Tribunal’s view that the ultimate sanction of a strike-off was not warranted in all the

circumstances.

11. The Society’s grounding affidavit outlined the nature of the complaints of misconduct, the progress of the proceedings before the

Tribunal, the nature of the evidence given and submissions made in relation to sanction, the five findings of misconduct, and

recommendation as to sanction contained in the Tribunal’s Report. Having done so, the Society urged that the Tribunal’s

recommendation as to sanction ought not to be followed by the High Court, and set out its reasons for seeking instead that the

appellant’s name be struck off the roll of solicitors.

12. The Society urged that a strike-off order was appropriate and proportionate given the nature and degree of the appellant’s

admitted misconduct, the necessity to maintain the public’s confidence in the solicitors’ profession, and the need to protect the

public. In this regard the Society set out an accurate summary of the acts of misconduct to which I have already referred. It

expressed its view that these acts constitute gross and egregious misconduct as well as a fundamental breach by the appellant of

the requirements of honesty and trustworthiness required of a solicitor so that the public may have confidence in the profession.

13. The Society submitted that the appellant had displayed a lack of insight into his misconduct, and that only at the final sanction

hearing before the Tribunal had the applicant finally come to acknowledge the gravity of his misconduct.

14. In relation to the trustworthiness of the appellant the Society deposed as follows:

“iv. … If one reads through the transcript and in particular the evidence of the complainant one can see that there was a

fundamental breach of trust and abuse of position by the respondent solicitor. This had an enormous detrimental effect on

the complainant and it is noteworthy in his evidence to the Tribunal the complainant repeatedly stated that he could not

trust the respondent solicitor and this was the reason the matter was continually adjourned by the Tribunal for a period of

years to have the second Shanghai property sold so that the second undertaking could be complied with two Bank of

Ireland. It is notable that the Tribunal of itself agreed to adjourn this matter for a number of years (which is

unprecedented) to allow the second property to be sold. The Society would argue that this reflects the Tribunal’s own

shared unease with the complainant in trusting the respondent solicitor, and it was concerned that if final sanction was

made, the complainant and Tribunal would lose any leverage over the respondent solicitor and that he would not comply

with the sale of the second property in Shanghai and thus discharge the second undertaking. The Society would argue

that this a fortiori demonstrates that the respondent solicitor[‘s] trustworthiness is very much in doubt and for the

protection of the public and the maintenance of the solicitors’ professional reputation the respondent solicitor should not

be allowed to continue in practice in any form even in a limited capacity.”

15. It was therefore urged that it would be just and proportionate that the appellant’s name should be removed from the roll of

solicitors, and the Society sought an order in those terms.

The hearing before the President of the High Court

16. The President of the High Court had sight of the motion and affidavits prior to the hearing. The hearing itself was therefore

relatively brief as is clear from the transcript of the hearing which has been provided to this Court. Counsel for the Society briefly

outlined the details of the misconduct found by the Tribunal and admitted to by the appellant. He referred to the sale of the

properties in Shanghai. He summarised the submissions as to sanction which had been made to the Tribunal, including briefly the

mitigating factors such as the fact that the appellant was apologetic for his wrongdoing and that there was no call upon the Society’s

Compensation Fund. Counsel also confirmed to the President that there was no history of previous misconduct by the appellant. In

urging the President to depart from the recommendations of the Tribunal, Counsel for the Society referred to the seriousness of the

appellant’s conduct, its dishonesty, and the Society’s concerns for the public’s confidence in the profession, and the protection of the

public given the trust that the public places in a solicitor who acts for them. In all the circumstances a strike-off order was sought.

17. The appellant had filed a replying affidavit in which he fully acknowledged his guilt and pointed to the level of his cooperation in

order to ensure that there was no financial loss to any party. He also again acknowledged the distress caused to his former partner,

and expressed his ongoing shame for the conduct he had engaged in. He referred to the extensive consideration given by the Tribunal

as to the appropriate and proportionate sanction to be recommended to the High Court, and to the fact that before making its

recommendations in that regard the Tribunal had had the benefit of hearing his oral evidence. He urged that the sanctions

recommended by the Tribunal were proportionate in all the circumstances, although acknowledging that his misconduct merited a

severe sanction. He submitted that the recommended sanctions should be seen as severe in all the circumstances, and sufficient to

maintain the public’s confidence in the profession and upholding the good name of the Society. He concluded his replying affidavit by

stating the following:

“15. Even though it is not my intention to practise as a solicitor, any decision to strike me off as a solicitor is likely to

have an impact on my future employment prospects and expose me to significant public opprobrium. In that regard I say

that I am prepared and do so undertake to this Honourable Court, that I will not act as a solicitor in any capacity,

whether by a limited practising certificate or otherwise pending further order of the Court. I say that my solicitor did by

letter dated 11th March 2015 write to the Law Society informing the Society that I was prepared to give the

aforementioned undertaking ……… . In the circumstances I would respectfully urge the Court to resist acceding to the

application [of the Society] imposing the ultimate sanction.”

18. That letter was exhibited in the replying affidavit, and having referred to the undertaking that he was willing to give to the Court

that he will not practise as a solicitor in any capacity whether with a limited practising certificate or otherwise pending further order

of the High Court, the letter went on to state that “any application made to vacate this proposed undertaking would be made on

NOTICE to the Society and any supervising solicitor employing the respondent would be subject to the approval of the Regulation of

Practice Committee of the Society.”

19. During the course of submissions to the President counsel for the appellant had referred to this undertaking when urging that the

ultimate sanction of a strike-off was unnecessary and would be disproportionate given that the appellant was undertaking not to

practise as a solicitor in any capacity for the foreseeable future, and in any event not without leave of the Court – to be sought on

notice to the Society. It was urged in such circumstances that it would suffice if there was a direction that in the event of any such

application being made by the appellant it would be confined to a limited practising certificate only. It is at this point of the

submissions that the President stated that he was under the impression that the appellant intended never to again practise as a

solicitor in any capacity. Counsel clarified that the undertaking proposed was that he would not do so without making an application

to the High Court, and then only for a limited practising certificate – in other words one that would enable him to practise only as an

employed solicitor under supervision, as had been recommended by the Tribunal.

20. It was following the above exchange that counsel for the Society responded by stating that the intention to again practise albeit

with leave of the Court gave rise to some concerns on the part of the Society, to which the President responded:

“Well, if he is restrained from practising as a solicitor for a period of 10 years and thereafter only by leave of the Court, I

take it that would meet the situation …”.

21. Counsel for the Society confirmed that this proposal would meet the Society’s concerns. Counsel for the appellant stated that he

was hoping not to have a 10 year period imposed, but rather that any application to resume practice would be by leave of the Court

only, so that any such application in the future could be considered, and confined to a limited practising certificate.

22. Following these exchanges, the President stated his conclusion as follows:

“… No, I am going to fully restrain him from practising as a solicitor for 10 years and thereafter he may, if he wishes, seek

leave of the Court to reassess the situation in terms of a possible limited practising certificate.”

The President’s order as perfected

23. The order of the President dated 13th April 2015 was, as perfected, in the following terms:

“IT IS ORDERED

1. That the respondent be prohibited from practising as a solicitor or from holding himself out as a solicitor entitled

to practise for a period of 10 years from the date of the making of this Order.

2. That the respondent at the expiration of the 10 year prohibition period apply to the Court should he wish to

resume practice as a solicitor.

3. In the event of the respondent applying to the Court to resume practice as a solicitor that he not be permitted

to practise as a sole practitioner or in partnership. That he be permitted only to practise as an assistant solicitor in

the employment and under the direct control and supervision of another solicitor of at least 10 years standing to be

approved in advance by the Law Society of Ireland.

4. That the respondent never be given cheque signing rights over any client account.

5. That the respondent when seeking employment as a solicitor must furnish any prospective solicitor employer with

a copy of these findings.

6. That the respondent pay the sum of €5000 to the Compensation Fund.

7. That the respondent pay the whole of the Society’s costs and witness expenses in the Solicitors Disciplinary

Tribunal Proceedings to be taxed in default of agreement.

8. That the respondent pay the Society’s costs of the within application to be taxed in default of agreement.

24. It can be seen that with the exception of the orders at 1 and 2 above, the order as perfected includes conditions recommended

by the Tribunal in its Report provided to the High Court, even though the order as pronounced by the President orally was limited to 1

and 2. I mention that curiosity only in passing as no point was taken that the remainder of what was ordered was not pronounced by

the President in his ex tempore remarks.

25. Orders made at 1 and 2 above go further than what was recommended by the Tribunal. It had recommended that the appellant

should not be permitted to practise as a sole practitioner or in partnership, and that he be permitted only to practise as an assistant

solicitor in the employment and under the direct control and supervision of another solicitor of at least 10 years standing to be

approved in advance by the Society. What is ordered at 1 and 2 in its terms falls short of the strike off order sought by the Society,

but for reasons which will become apparent, the appellant submits that by their effect the orders at 1 and 2 in fact operate as a

sanction which is even more draconian that the so-called ultimate sanction of strike off, and is so disproportionate to his misconduct

in all the circumstances outlined as to be not in accordance with law, and further that it is an order that in fact the President had no

power to make given the very specific powers conferred on the Court by s. 8(1)(a) of the 1960 Act, as substituted by s. 18 of the

1994 Act, following the making of a report to the High Court by the Disciplinary Tribunal.

26. Section 8(1)(a)(i) of the 1994 Act, as amended, provides as follows:

“(a) the High Court, after consideration of the report and the submissions (if any) made to it by the Society under

subsection (1A) of this section:-

(i) may do one or more of the following things, namely:-

(I) strike the name of the solicitor off the roll;

(II) suspend the solicitor from practice for such specified period and on such terms as the Court thinks

fit;

(III) prohibit the solicitor from practising on his own account as a sole practitioner or in partnership for

such period, and subject to such further limitation as to the nature of his employment, as the Court

may provide;

(IV) restrict the solicitor practising in a particular area of work for such period as the Court may

provide;

(V) censure the solicitor or censure him and require him to pay a penalty;

And, in making any such order, the Court shall take account of any finding of misconduct on the part of the respondent

solicitor previously made by the Disciplinary Tribunal (or by their predecessor, the Disciplinary Committee) and not

rescinded by the Court, and of any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the

respondent solicitor.”

27. The orders made by the President, and in particular orders at 1 and 2, must be considered in the light of these provisions in order

to determine this appeal.

28. Clearly s. 8(1) provides for a hierarchy of sanctions commencing with the most serious sanction of a strike off. However, even

that ultimate sanction need not be forever in the sense that s. 10 of the 1960 Act makes provision for a solicitor whose name has

been struck off the roll of solicitors to apply to the High Court to have his name restored to the roll. The section is silent as to what

period of time must have elapsed from the strike off order prior to any such application being made. Within the section there is

guidance only as to the circumstances in which the High Court might not make a restoration order. In that regard, s. 10(4) of the

1960 Act provides:

“(4) Where, on the hearing of an application under this section, it is shown that the circumstances which gave rise to the

striking off the roll of the applicant’s name involved an act or acts of dishonesty on the part of the applicant arising from

his former practice as a solicitor or that the applicant was convicted of a criminal offence, the High Court shall not restore

the applicant’s name to the roll, either conditionally or unconditionally, unless it is satisfied that, having regard to all the

evidence, the applicant is a fit and proper person to practise as a solicitor and that the restoration of the applicant to the

roll would not adversely affect public confidence in the solicitors’ profession as a whole or in the administration of justice”.

29. So, even where the most severe sanction has been imposed, the solicitor may still apply at any time thereafter to have his or her

name restored to the roll, and the Court has a broad discretion as to the circumstances in which such restoration can be permitted –

subject only to what is specifically provided for in s. 10(4) of the 1960 Act above.

30. While in the present case the President’s order at 1 has “prohibited [Mr. Callanan] from practising as a solicitor or from holding

himself out as a solicitor entitled to practise for a period of 10 years from the date of the making of this Order”, this order must in my

view be considered to be a suspension from practice. An order “prohibiting” the solicitor from practising is not among the sanctions

specifically provided for in s. 8(1)(a) of the 1960 Act. Giving his ex tempore decision the President stated he intended to “restrain”

him from practising as a solicitor for a period of ten years. It is clear that the President was intending to impose the second sanction

in the hierarchy of sanctions available namely to suspend him from practice for a specified period (ten years) and subject to terms

which he saw fit to impose. At first glance such an order is within the terms of sanction II in s. 8(1) as set forth above. It is for a

specified period and certain terms are stated in the order.

31. It seems to me that there are three difficulties with the order made by the President at 1 and 2 of his order. Firstly, the ten year

period of suspension must be considered to be an outlier in terms of its length when compared to the length of other suspensions

imposed. The Court has been informed on this appeal that in no other case has there been a suspension of more than two years. That

of itself makes this suspension out of the ordinary. Secondly, the order requires that even after the ten year suspension has come to

an end the solicitor must still make some application to the High Court in the event that he wishes to resume practising as a solicitor.

Thirdly, the solicitor is precluded from making any application to the High Court during the currency of the suspension period to have

the suspension lifted.

32. The second difficulty identified above raises the question of what is the solicitor’s status between the expiry of the suspension

and the date of any order made by the High Court on the required application. He is neither subject to suspension nor struck off, yet

he may not apply for a practising certificate. The President’s order does not say what is the nature of the application to be made by

the solicitor at the end of the suspension. It could not be an application to have his name restored to the roll of solicitors because he

was not struck off the roll. Neither could it be an application to have his suspension lifted because at the end of the ten year period

he would be no longer suspended. In my view whatever is the nature of the application referred to at 2 in the President’s order, it is

not one for which there is any provision in the Act, and therefore not one intended by the Oireachtas.

33. Also in my view, not only is the suspension/restriction contemplated by this order not one for which there is any provision in the

Act, but the order specifies conditions which must be imposed in any such order that may be granted following the application

required to be made after the expiration of ten years. These conditions reflect the recommendations of the Disciplinary Tribunal that

Mr. Callanan be permitted to practise as a solicitor on a limited basis only and subject to certain specified conditions which are set

out in its recommendation at para. 9 above. Even if the High Court may have an inherent jurisdiction to hear an application of the kind

required by the President’s order even though no such application is contemplated by the Act, the President’s order constrains the

High Court as to the nature of any order it might consider appropriate in ten years’ time. That to my mind is not an order that for

which there is jurisdiction.

34. Section 8(1)(a)(i)(II) of the 1994 Act (as amended) does not envisage the imposition of a condition that a solicitor must apply to

the High Court at the expiry of the suspension period prior to resuming practice. The suspension must be for a specified period and

whilst the High Court may impose terms in relation to it, once the specified period has come to an end the solicitor is no longer

suspended. The Court may of course make additional orders under s.8 (1)(a)(i)(III) or (IV) restricting how he may practise upon

expiry of suspension period.

35. As for the third difficulty to which I refer in para. 31 above, namely that the solicitor is precluded from making any application to

the High Court during the currency of the suspension period to have the suspension lifted it should be noted firstly that under s. 8(1)

(a)(i), there is no provision expressly enabling the solicitor to make an application to the High Court to have the suspension lifted

ahead of its expiry. I have referred to the provisions of s. 10(4) of the Act which enables a struck off solicitor to make an application

to have his or her name restored to the roll. The fact that there is no equivalent application expressly provided for in the case of a

suspension suggests to me that the Oireachtas intended that the period of any suspension would be relatively short, and certainly

not as long as ten years. The fact that the Society during its submissions was unable to point to any suspension imposed for longer

than two years is instructive too in that regard.

36. However, the statutory scheme does envisage, at least by implication, that a solicitor who is subject to a suspension order may

apply prior to the expiration of that suspension to have it lifted, but not following its expiration for the very obvious reason to which I

have already referred, namely that after it has expired, there is no longer any suspension to lift. I refer to the provisions of s. 63(2) of

the 1954 Act, as substituted by s. 21 of the 1994 Act which provides:-

“(2) save under and in accordance with a written permission under this section, a solicitor:-

(a) whose name has been struck off the roll, or

(b) who is suspended from practice, or

(c) to whom a practising certificate has been refused under section 49 (as substituted …), or

(d) whose practising certificate has been suspended under section 58 of the [1994 Act], or

(e) who has given an undertaking to the High Court not to practice as a solicitor,

shall not engage in any work in any capacity involving, or in connection with, the provision of legal services,

whether in relation to his former practice as a solicitor or otherwise, until:-

(i) the High Court has made an order restoring his name to the roll, or

(ii) the High Court has lifted the said order of suspension from practice, or

(iii) the High Court has made an order directing the granting of a practising certificate to him, or

(iv) the High Court has discharged any order of suspension of his practising certificate, or

(v) the High Court has released him from any undertaking by him not to practice as a solicitor.[emphasis

added]”

37. The provisions at (b) above refer to a solicitor who “is suspended” not “was suspended”. Paragraph (ii) above refers to an extant

suspension being lifted. Even though there is no particular provision providing for the making of such an application, the ability of a

suspended solicitor to bring such an application must be implied. But it is an application that is to be made during the currency of the

suspension, and not after its period has run its course.

38. Under the order made by the President, Mr. Callanan is prevented from making any application to have his suspension lifted during

its currency. That in my view is contrary to the statutory scheme, and not provided for under s. 8(1) of the 1960 Act in particular.

39. The effect of the orders on Mr. Callanan, as made, may on one view be considered to be more onerous than if he had been struck

off, given that he is prevented from making any application to have the suspension lifted during the ten year peirod. I appreciate that

Mr. Callanan in his submissions to the President had wished to avoid what he described as the opprobrium attached to being struck

off, and that on one view the intention of the President was to avoid that, and yet ensure that Mr. Callanan did not practise again for

a very lengthy period. He no doubt could have simply suspended him from practice for a specified period, even one longer than the

normal suspension which apparently has not exceeded two years thus far. But any sanction must take account of all the

circumstances of the case, one of which was that at the date of the President’s order Mr. Callanan was almost 50 years of age. A 10

year suspension without any capacity to make an application to have it lifted before the end of ten years means that he would not be

permitted to even make an application to be permitted to resume practice until after he was aged 60 or thereabouts. Given the

condition also that in the event of such an application he be “permitted to practise only as an assistant solicitor in the employment

and under the direct control and supervision of another solicitor of at least 10 years standing”, the chances at such an age of getting

any employment must be seen as unlikely.

40. Even if Mr. Callanan had been struck off the roll he could have applied to have his name restored under the wide discretion

existing under s. 10 of the 1960 Act as amended, and subject of course to what is provided for in s. 10(4) to which I have referred It

would of course have been up to the judge hearing such an application to determine whether such an application was premature, or

whether it should be granted or not in the light of the facts then disclosed, and in the light of any opinion expressed by the Law

Society who will have been put on notice of the application. But, at least, the solicitor may make such an application. In the case of

Mr. Callanan he was precluded from making an application to have his suspension lifted during its currency by the order made at 2 by

the President, even though such an application might otherwise be made as explained above.

41. I consider that the appellant is correct in his submission that there is no jurisdiction to make the order that was made in this case

for the reasons which I have explained.

42. I would allow this appeal, and would vacate the orders made by the President. I would favour remitting the matter back to the

current President of the High Court so that he may consider the question of a proportionate sanction within the menu of sanctions

available under s. 8(1) of the 1960 Act.

43. While not strictly necessary to do so, I should go on to express my view also that where the President was departing so radically

from the recommendations of the Disciplinary Tribunal, by the orders made at 1 and 2 of his order, it was necessary for him to explain

his reasons for doing so. In my view the solicitor is entitled to know the reasons for such a radical departure from the Tribunal’s

recommended sanctions as a matter of fair procedures, and so that he or she may consider and be advised as to any appeal against

the decision made.