A solicitor who admitted professional misconduct, including using €10,000 in client monies towards paying his personal tax bill, has been suspended for a year after which he can resume practising under conditions to expire after seven years.
The president of the High Court, Mr Justice Peter Kelly refused a Law Society application to strike off Thomas D'Alton and said the alternative sanction fashioned by the court was a "proportionate" response to the solicitor's wrongdoing.
His ruling “should not be interpreted as any relaxation of the courts’ obligation to continue to ensure that public confidence in the integrity of the solicitors’ profession is maintained,” he stressed.
The findings of misconduct against Mr D’Alton concerned his using €54,680 monies of different clients between 2014 and 2016 for purposes including using €10,000 in client monies in 2015 towards a personal tax liability and €8,000 from the estate of a dead man in September 2015 to reduce the overdraft on his office account.
The monies taken were later repaid, no client suffered a loss and there was no client account deficit when Mr D'Alton, who had practised as James J Kearns & Sons, Portumna, Co Galway, closed down his practice in November 2017, the court heard.
The Solicitors Disciplinary Tribunal (SDT) and the Society, represented by solicitor Mary Fenelon, had recommended a strike off order arising from the admitted misconduct.
The SDT also noted Mr D’Alton had a prior disciplinary record involving five different adverse findings against him, one of which had lead to his being required to pay €14,145 restitution to a man’s estate. All of those matters, as well as issues in 2010 concerning failure to honour undertakings to financial institutions, were ultimately resolved.
Ill health
Paul Gallagher SC, for Mr D’Alton, had urged the court not to strike off the solicitor and instead permit him to continue practising as an employed solicitor under supervision.
Mr D’Alton, who is married with children, said in an affidavit he has a “stark economic necessity” to earn money.
In his reserved judgment on Tuesday, Mr Justice Kelly ruled, in the “unusual” circumstances of this case, a strike off order would be “disproportionate and inappropriate”.
He came to that conclusion for reasons including undisputed evidence about the “dreadful” ill health being experienced by Mr D’Alton in the relevant period. His health difficulties began with a fall in 2007 which resulted in ankle and foot injuries and a series of surgeries over several years from 2009.
A report from his GP described Mr D’Alton’s experience between 2014 and 2016 as “catastrophic”. It noted, apart from all the surgeries, he developed a very serious bone infection, had a hip replacement and had to work through all this. The GP also expressed concern about Mr D’Alton’s mental health throughout this period.
The judge was “astonished” details of the ill health were not put before the SDT when it recommended the sanction of strike off. Had it been, the SDT might have recommended a different sanction, he said.
Mr D’Alton has also subsequently ensured no client was out of pocket as a result of his dishonesty and that no claim has, or will be, made on the Society’s Compensation Fund, the judge said. He had admitted the misconduct and apologised.
While satisfied the risk of any repetition of the wrongdoing is “virtually nil”, the alternative sanction being imposed will ensure such risk is “zero”, he said.
The appropriate sanction is to suspend Mr D’Alton from practising for a year and to direct, after he is restored to the roll of solicitors on April 1st 2020, he may practise only as a solicitor employed and supervised by another solicitor approved by the Society, he ruled.
Mr D’Alton cannot give any undertakings without the prior written consent of his supervising solicitor and cannot have any drawing rights on the client or other accounts of the employing practice, he further directed.
The conditions will apply for seven years and, if breached, the Society can seek an immediate strike off order, he said.
Earlier, the judge noted several solicitors in Mr D’Alton’s locality had provided references speaking “very highly “of him and expressing a willingness to employ him.
