Tribunal finds pair guilty of misconduct
John Downes
Two Co Mayo based solicitors were yesterday censured and fined €25,000 each plus costs by a disciplinary tribunal after it found they were guilty of a range of professional misconduct charges.
But the Solicitors Disciplinary Tribunal in Dublin ruled that Michael McDarby and Seán Acton, of Michael McDarby and Co in Ballinrobe, should not be struck off.
This was despite an application for this "ultimate penalty" from their regulatory body, the Law Society of Ireland.
Counsel for the society, Paul Anthony McDermott, accused the pair of charging fees at a "specified percentage" of monies payable to their clients, contrary to the Solicitors (Amendment) Act (1994).
Investigations by two accountants acting on behalf of the society, in March and November 2004, had suggested in some cases monies amounting to about 10 per cent of funds payable to their clients were paid into the special accounts, with the remainder paid into the clients' ordinary accounts.
But in its ruling, the tribunal said there was not sufficient evidence that the men had engaged in this practice, something which their legal team had also argued was the case.
As a result, it found the pair not guilty on this count. Both men were found guilty or pleaded guilty to eight counts of professional misconduct, with Mr McDarby found guilty of a ninth count.
Tribunal chairwoman Maeve Hayes ordered that they be censured and pay fines of €25,000 each, as well as the costs of the investigation, and the case taken by the Law Society.
The eight charges included providing misleading information in October 2004 when they were investigated by the Law Society; failing to process solicitor/client fees through the office account; failing to maintain a proper audit trail when handling their clients' monies; and failing to furnish a bill of costs to clients.
Among the other charges registered against them were failing to record professional fees in their account books; failing to provide clients with details in writing of charges recovered from third parties; and failing to maintain proper books of account.
The ninth charge, which was brought solely against Mr McDarby, related to "deliberately" having misled the society's investigation accountant by denying in August 2004 that solicitor/client fees had been charged, a claim that was subsequently found not to be true. The case revolved around an investigation into the activities of the solicitors which commenced in March 2004.
This examined a total of 120 files, mainly relating to personal injury claims.
It found that they had set up "special accounts" in their clients' names at the Ulster bank branch in Ballinrobe.
However, solicitor for the men, Seán Sexton, said there were no complaints against the men from their clients. "There is not one shred of evidence that any member of the public has lost out," he said.