October-13-2016 in Healthcare Law, Dispute Resolution & Litigation, Professional Negligence, Regulatory & Administrative Law
Aisling Malone considers whether the High Court may be reverting to a more stringent approach to sanctioning professionals following disciplinary proceedings.
In the recent case of The Law Society of Ireland v Enright, Mr Enright, a solicitor, was convicted of forgery and served a custodial sentence. The Solicitors’ Disciplinary Tribunal held an inquiry into his conduct and found him guilty of professional misconduct. It recommended that Mr Enright should be struck off the Roll of Solicitors and in the High Court, President Kelly granted a strike off order.
President Kelly commented that the order was not intended to be punitive or to guard against a repeat offence. The intention in striking Mr Enright off was to maintain the reputation of the solicitors’ profession and President Kelly was satisfied that any more lenient sanction would not achieve that purpose.
President Kelly quoted Sir Thomas Bingham M.R. in the case of Bolton v Law Society as follows: “There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are the traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence… The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one which every member, of whatever standing, may be trusted to the ends of the earth”.
More recently, in The Law Society of Ireland v O’Sullivan, which concerned a solicitor who had an acrimonious dispute with a client regarding fees charged following a personal injuries action, Judge McDermott endorsed Bolton and referred back to an earlier case from 2009, The Law Society v Carroll and Another, where Bolton was applied. In O'Sullivan, the conduct complained of, fell short of the more egregious forms of potential misconduct and the respondent solicitor was not struck off but had conditions imposed on him.
A shift in the case law?
Other cases, however, endorse a more lenient approach. In Re Burke President Morris had previously refused to accept Bingham M.R’s reasoning in Bolton when he accepted that maintaining the good name of a profession could ultimately involve an unavoidable injustice to the registrant.
In 2010, the Supreme Court in Meadows v Minister for Justice Equality and Law Reform sounded a note of caution against excessively stringent sanctions and introduced a proportionality assessment, saying “what is irrational or unreasonable depends on the subject matter and the context”.
Later the same year, Judge Charleton adopted a proportionality analysis in Hermann v Medical Council. Judge Charleton endorsed the four principles regarding sanctioning set out by President Finlay in 1994 in The Medical Council v Murphy, as follows: “First, I have to have regard to the element of making it clear … to the medical practitioner concerned, the serious view taken of the extent and nature of his misconduct, so as to deter him from being likely, on resuming practice to be guilty of like or similar misconduct. Secondly, it seems to me to be an ingredient though not necessarily the only one that the order should point out to other members of the medical profession the gravity of the offence of professional misconduct and thirdly, and this must be to some extent material to all these considerations, there is a specific element of the protection of the public which arises where there is misconduct and which is, what I might describe as the standard in the practice of medicine. I have as well an obligation to assist the medical practitioner with as much leniency as possible in the circumstances.” Judge Charleton ordered an amendment in the conditions to be attached to Dr Hermann's practice because the conditions originally imposed were shown to be unworkable.
In Carroll, Judge Geoghegan had said: “It is clearly the law in this jurisdiction therefore that in considering the question of striking a solicitor off the Roll, there must be put into the balance, among the other factors, any question of real potential injustice being caused to the solicitor in question”.
In summary, the perception was that the Irish courts were distancing themselves from the very strict Bolton approach. It was once questionable whether the strictest aspects of Bolton were good law in Ireland. However, the Enright and O’Sullivan judgments seem to signal a potential reversion to that strict approach to sanctioning, with greater weight being placed on the importance of a profession’s reputation and the need to uphold it than on avoiding any potential injustice to the individual registrant or affording leniency. It remains to be seen if a new trend in this regard will emerge.
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