Gerald Kean loses appeal against finding of professional misconduct

The High Court has dismissed solicitor Gerald Kean's appeal against a finding of professional misconduct arising out of his handling of a former client's case.

In a judgment today High Court President Mr Justice Nicholas Kearns upheld a finding of professional misconduct made by a Solicitors Disciplinary Tribunal (SDT) against the well-known solicitor over his handling of a case brought by Christoper O'Neill.

In his ruling the judge said the SDT had “ample evidence to support its conclusions” about Mr Kean, and its findings “could not be considered irrational, speculative or in any other way lacking a proper foundation”.

However, the court said it would not impose a fine of €20,000 for misconduct on Mr Kean, which had been recommended by the SDT.

The judge said the finding of misconduct, which did not rank among the most serious cases of misconduct to come before the court, against Mr Kean was a harsh enough penalty.

In the circumstances he did not propose to impose the fine of €20,000.

Mr Kean, who was not present in court for the ruling, had disputed the findings against him and denies misconduct. He also argued the fine was disproportionate and excessive.

The Law Society opposed the appeal and argued the SDT's findings and fine should be upheld.

The SDT’s made findings last May in relation to three allegations against Mr Kean but not in relation to several others complaints made by Mr O’Neill over services rendered by the solicitor.

The findings against Mr Kean arose from complaints made by Mr O'Neill of Drumsna in Leitrim that Mr Kean knowingly misled him into believing the solicitor had put in a defence to a District Court debt case against him (Mr O'Neill) by Ballycotton Marine Services Ltd in 2005.

That action arose because Mr O'Neill was unhappy with repairs carried out on a boat he owned. As part of Mr O'Neill's action against the party who did the repairs he engaged the services of Ballycotton Marine Services (BMS).

An engineer with BMS was engaged to do an analysis of the repairs Mr O’Neill was unhappy with. That engineer subsequently declined to give evidence or allow their report be used as part of Mr O’Neill’s litigation.

When invoiced Mr O’Neill refused to pay Ballycotton. BMS brought proceedings in the District Court against him. Mr ONeill said he hired Mr Kean to act for him in that case, which he lost. Mr O’Neill said he received a judgment in the post instructing him to pay €1,067.

He then made several complaints against Mr Kean in relation to his representation of him. The SDT upheld Mr O’Neill complaints Mr Kean knowingly misled him into believing a notice to defend the proceedings involving BMS had been submitted.

The SDT also found the solicitor failed to lodge an appeal against the decree and misled Mr O’Neill into believing such an appeal was lodged.

In his judgement Mr Justice Kearns said there was “sufficient evidence” before the SDT “to comprehensively demonstrate beyond reasonable doubt that Mr Kean in effect tried to mislead his own client in a misguided attempt to cover up what initially was an omission.”

He said that it was the cover up of the true facts in this case which drove the SDT to conclude as it did. If the omission was addressed in a proper way it would not have led to a finding of professional misconduct, the judge added.

The judge said it would not have been difficult to imagine Mr O’Neill’s feelings when he discovered a judgment had been marked against him in default of a defence when he Believed the case was being fully defended.

“Honesty is a fundamental requirement that every solicitor must bring to bear on dealings with his or her own client,” No solicitor needs, or should need, any reminder of this obligation, the judge said.

In relation to the fine recommended by the SDT the judge said he could not accept the argument advanced by Mr Kean’s legal team that the amounts involved in Mr O’Neill’s case were so small that the findings against him could be viewed as relatively minor.

“The deception of one’s own client with regards the marking of a judgment has to be regarded as a grave matter no least as it may affect the reputation of and credit worthiness of the client” he said.

The issue did not turn on the amount of money involved but on the breach of obligations and trust between a solicitor and client which must be maintained in the interests of the both the public and the solicitors profession.

The judge said the findings against Mr Kean would “undoubtedly be sorely felt,” particularly as he is an extremely well known solicitor.

Perhaps for that reason the proceedings were followed with more than ordinary interest by the media, the judge noted.

The case did not rank with the most serious cases of misconduct to come before the court. While it was misconduct, the judge said that finding alone was a harsh enough penalty in itself for Mr Kean.

In the circumstances the judge said he did not intend to impose the fine.

The judge also awarded costs of the appeal in favour of the Law Society.

Mr Kean, through his solicitor Caoimhe Haughey, issued a statement shortly after the judgment in which he welcomed the High Court President’s decision to remove the fine.

“In over 30 years of practice I am proud to have enjoyed an unblemished record of service to my clients,” he said.