About the Tribunal
If an applicant is unhappy with the Tribunal’s sanction imposed for misconduct?
“Misconduct” by a solicitor is defined broadly in the Solicitors Acts, 1954 to 2008 and is perhaps best illustrated by specific examples such as breach of undertaking, conflict of interest, misleading a client, failure to reply to communications from a client delay in bringing a case to court and dishonesty.
A form of application (Form DT1) and a supporting affidavit (Form DT2) must be completed by the applicant setting out simply and clearly the details of the complaint of alleged misconduct against the solicitor concerned (“the respondent solicitor”). The affidavit should then be sworn before a commissioner for oaths or a practising solicitor. Any documents considered appropriate to support the application should be referred to in the affidavit and included with it. The form of application and the supporting affidavit of the applicant (and any documents referred to in it) should then be delivered or sent to:
Tribunal Registrar,
Solicitors Disciplinary Tribunal,
The Friary,
Bow Street,
Smithfield,
Dublin 7.
The Tribunal will, on receipt, send a copy of the application and supporting affidavit (and any documents referred to in it) to the respondent solicitor and to the Law Society of Ireland (“the Society”). The respondent solicitor then has 28 days (excluding Saturdays and Sundays) to forward to the Tribunal an affidavit in response to the complaints made. The Tribunal will send a copy of the respondent solicitor’s response (if any) to the applicant, who may in turn file a further (second) affidavit responding to the matters raised by the respondent solicitor within 28 days (excluding Saturdays and Sundays)
If appropriate, the Tribunal (on application to a division of the Tribunal) may extend the time limit to allow either party to respond to the affidavit of the other party.
Save as set out immediately below in exceptional cases, the further (second) affidavit furnished by the applicant to the Tribunal shall be the final affidavit filed for the purpose of determining whether or not a ‘prima facie’ case is made out against the solicitor.
In exceptional cases, the Tribunal may permit a further exchange of affidavits between the parties, initially on the part of the respondent solicitor and subsequently on the part of the applicant in reply. The Tribunal will fix the time allowed for the exchange of such further affidavits. Such exceptional cases are confined to circumstances where the overriding interests of justice require that such a further exchange of affidavits should occur.
If, after considering all documentation lodged by the parties, the Tribunal is of opinion that there is a ‘prima facie’ case for an inquiry, the applicant, the respondent solicitor and the Society will be notified of the date, time and venue for the inquiry.
Where the Tribunal is of the opinion that there is no ‘prima facie’ case for inquiry, the applicant, the respondent solicitor and the Society will each be notified in writing of its decision in respect of each complaint of misconduct and the reasons therefor. In such circumstances, the applicant may appeal to the High Court against the decision of the Tribunal within 21 days of the receipt by the applicant of notification of the Tribunal’s decision. The Court may either confirm such decision of the Tribunal or, alternatively, may decide that there is a ‘prima facie’ case for inquiry and require the Tribunal to proceed to hold an inquiry.
The applicant should be present at the inquiry. However, if the applicant or his/her legal representative(s) fail to attend, the Tribunal may proceed with the inquiry on proof that the applicant (or his/her solicitor) was served with the appropriate notice. The applicant may be legally represented or may represent himself/herself, as he/she wishes.
In exceptional cases, the Tribunal can request the Society, if it thinks fit, to intervene by either lodging a further application on behalf of the applicant or proceeding on foot of the existing application.
Further, at any stage in the processing of an application for an inquiry, the Society (where it is not the applicant) may apply to a division of the Tribunal for leave either to make a new such application in relation to the respondent solicitor concerned or to undertake on behalf of the original applicant the prosecution of the existing application.
The Tribunal has the same rights and powers as the High Court in regard to the enforcement of the attendance of witnesses, the production and the discovery of documents. Witnesses may be subpoenaed to attend and give evidence on oath or by declaration and be subject to cross-examination. It should be noted that the Tribunal has power to order an applicant or a respondent solicitor to pay a sum or sums not exceeding a total of €10,000 to a witness or witnesses where the subpoenaed attendance of that witness or witnesses is found by the Tribunal to have been unnecessary and is likely to involve the witness or witnesses in unnecessary delay or expense. Any such order by the Tribunal may be appealed by the effected party to the High Court within 21 days of the receipt by the effected party of notification in writing of the order.
At the end of the inquiry, the Tribunal will consider each complaint of misconduct against the respondent solicitor and make a separate finding in respect of each complaint. While it may find some of the complaints proven and others not, the Tribunal must in the case of each complaint give a reason(s) for its finding.
Where the Tribunal finds that there has been no misconduct on the part of the respondent solicitor, the applicant and the respondent solicitor and the Society will be informed of its finding(s) and the reason(s) therefor and that the Tribunal intends to take no further action in relation to the matter.
The applicant may, within 21 days of the receipt of notification in writing of the finding of no misconduct on the part of the respondent solicitor in respect of a complaint (whether or not there has been a finding of misconduct in relation to any other such complaint), appeal to the High Court against that finding.
Where the Tribunal finds that there has been misconduct on the part of the respondent solicitor in respect of a complaint or complaints it will then hear submissions by or on behalf of the applicant and by or on behalf of the respondent solicitor as to the appropriate sanction and as to costs. The Tribunal may by order do one or more of the following:
- advise and admonish or censure the respondent solicitor;
- direct payment of a sum, not exceeding €15,000, by the respondent solicitor to the Compensation Fund;
- direct payment of a sum, not exceeding €15,000, by the respondent solicitor as restitution or part-restitution to any aggrieved party, without prejudice to any legal right of such party; and direct that the whole or part of the costs of the Society or of any person appearing before it, as taxed by a Taxing Master of the High Court in default of agreement, be paid by the respondent solicitor.
The Tribunal may however, decide not to make such an order, but, instead, to report its finding(s) of misconduct to the President of the High Court with a recommendation as to the appropriate sanction, which may include the suspension of the respondent solicitor for a period or that he/she be struck off the Roll of Solicitors.
If an applicant is unhappy with the Tribunal’s sanction imposed for misconduct?
If an applicant is unhappy with the Tribunal’s decision in regard to the sanction imposed, the applicant may appeal to the High Court to rescind or vary the order of the Tribunal, in whole or in part, within 21 days, beginning on the date of the service of a copy of the order, or of the report of the Tribunal to the High Court, whichever date is the later. The High Court may rescind or vary the order in whole or in part or may confirm that it was proper for the Tribunal to make the order.
The applicant may also appeal to the High Court within 21 days, beginning on the date of the service of the order, against the order of the Tribunal on the ground that the sanction imposed by the Tribunal is inadequate and that the Tribunal ought to have exercised its powers under the Solicitors Acts, 1954 to 2008 and to have referred the matter to the High Court; and, again, the High Court may rescind or vary the order in whole or in part or may confirm that it was proper for the Tribunal to make the order.