Limerick solicitor struck off over professional misconduct

A solicitor found guilty of professional misconduct in "numerous matters", including making false stamp duty returns and backdating deeds, has been struck off the Roll of Solicitors by the High Court.

The President of the High Court, Mr Justice Peter Kelly said a strike off order in the case of David Herlihy was necessary if the reputation of the solicitors' profession "to be trusted to the ends of the Earth" was to be maintained.

Mr Herlihy, formerly practising as principal of David Herlihy Solicitors, Lord Edward Street, Kilmallock, Co Limerick, had accepted the Solicitors Disciplinary Tribunal's findings of professional misconduct against him.

In an affidavit, he acknowledged his conduct was “deplorable” and apologised to the court for it, which he described as “completely out of character”. He believed his “serious lapses of judgment arose” from being overwhelmed by work and being under “severe financial stress” due to investing “unwisely” in property.

His actions were not motivated by greed and he would never engage in such behaviour again if allowed resume practice, he added.

The Law Society sought the strike off order because it considered a lesser sanction recommended by the Solicitors Disciplinary Tribunal was inadequate.

In his judgment, Mr Justice Kelly said he gave full credit to Mr Herlihy for admitting his wrongdoing, expressing contrition under oath and undertaking not to repeat the misconduct. He also bore in mind the tribunal recommendation against strike off and there was no loss of monies to clients.

But he also had regard to the fact, where dishonesty is established on a solicitor’s part, then, no matter how strong the mitigation, a strike off “will almost invariably follow”.

The “crucial” issue was whether the lesser penalty recommended by the tribunal – practising only as an assistant solicitor under supervision for 10 years and a €5,000 fine – was sufficient to maintain public confidence in the solicitors’ profession.

In this case, there were lapses of standards of integrity, probity and trustworthiness, the judge said. There had been “multiple” such instances and the tribunal had also recorded a level of “premeditation” in Mr Herlihy’s conduct.

‘Overcome’

Earlier, the judge noted, Mr Herlihy was admitted to the Roll of Solicitors in March 2001 and ceased practice in June 2013. In June 2015, the Law Society sought an inquiry into alleged misconduct by him and, when that came for hearing, his lawyers made admissions on his behalf in relation to facts in a society investigator’s affidavit .

In recommending the lesser sanction, the tribunal considered Mr Herlihy was “overcome in his practice”. He had farming interests, got overexposed in property transactions, and, while he co-operated with the inquiry, his first response was “not comprehensive” and he left the country, leaving his practice and clients in difficulties, it said.

While there was no loss to clients, Mr Herlihy admitted he was involved in a number of cases involving backdating deeds by up to six years and did not fulfil his obligations to his clients’ banks when the values and loan offers differed from the transferred deeds, it noted.

Mr Justice Kelly said the tribunal made findings of professional misconduct against Mr Herlihy in respect of “numerous matters”.

The tribunal found Mr Herlihy made false stamp duty returns on six occasions and failed on eight occasions to apply money collected from clients towards discharge of stamp duty and/or registration fees. It also found he failed on five occasions to take adequate steps when documents relating to a loan bore a purchase price greater than in the relevant contracts.

Other findings included failing to comply adequately or at all on one or more occasions with requirements of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.