Solicitor guilty of professional misconduct in failing to use his best endeavours to recover barrister’s fees

James Cross BL, on 30 October 2020 (© Decisis)

November 13, 2020

DK v MK [2020] IEHC 520 (High Court (Judicial Review), Hyland J, 15 October 2020)

High Court rescinds finding of no professional misconduct by the Solicitors Disciplinary Tribunal, and finds that a solicitor was guilty of professional misconduct in failing to use his best endeavours to recover a barrister’s fees, on the grounds that: the tribunal made serious and significant errors in making its decision, but there was insufficient basis to overturn the tribunal’s other findings that there had been no professional misconduct

Solicitors Act – appeal against a finding of a Disciplinary Tribunal that a solicitor has not been guilty of misconduct – not a de novo hearing – non-payment of counsel fees – prima facie case to be answered – failed and continues to fail to use his best endeavours to recover the appellant’s fees in respect of 125 cases – he failed to pass on the portion of fees due to the barrister in respect of the 125 cases – failed to provide a satisfactory explanation as to whether he has made any efforts to recover the barristers fees in respect of the 125 cases – 93 cases when the appeal came on for hearing – jurisdiction of the Court – remittal – Court rescinds finding of no misconduct in relation to allegation of failure to recover fees – refuses to remit to the tribunal – upholds decision that the solicitor has not been guilty of misconduct in relation to the other allegations – further evidence not required– no serious factual dispute – desirable that this matter be concluded as soon as possible – nature of review – none of the fee notes provided to him by the appellant were ever sent to clients – Law Society guidance in respect of the payment of counsel’s fees – could not be said that the solicitor had used best endeavours to ensure that the appellant received fees due and owing to him at the earliest opportunity – approach of the tribunal – tribunal appear to have accepted the factual situation as identified above ie that no fee notes were sent but found this was not misconduct – review of the tribunal decision – whether there were serious and significant errors vitiating the decision of the Tribunal – prima facie obligation on a solicitor to send out counsel’s fee notes in respect of work done – delay – fee notes were not provided until matters were at an end or fee notes sought – difficult to see why the provision of fee notes at this point should absolve the respondent of his obligation to seek to recover counsel’s fees – tribunal failed to consider the relevance of the respondent failing to inform the barrister that fee notes would not be submitted if only submitted at the end of the case or when requested – delay in receiving fee notes not identified in the Law Society guidance as a reason for absolving a solicitor from his or her obligation to submit fee notes – tribunal made a serious and significant error in treating delay in submitting fee notes in this case as justifying, at least in part, the wholescale failure of the respondent to submit fee notes – cases where no fees would ever be recovered – tribunal had before it an insufficient factual basis for accepting the argument of the solicitor there was no point in sending out fee notes at all as none of counsel’s fees were recoverable – nor did the tribunal consider whether a belief on the part of a solicitor that a client would be unlikely to pay, absolves him or her from complying with their best endeavours obligation having regard to the terms of the Guide or the Practice Note – no consent from the barrister to this process – agreement that some cases would be done on a no-fee basis – irrelevant evidence taken into account – factual errors – number of serious and significant errors in relation to first allegation – whether the solicitor was guilty of misconduct – factual breach – failed and continues to fail to use his best endeavours to recover the barrister’s fees – professional misconduct – insufficient basis to overturn the tribunal’s other findings.

Quotation from judgment (courtesy of the Courts Service of Ireland):

Accordingly, for those reasons, I conclude that in the particular circumstances of this case, given the number of fee notes not presented (93), the length of time over which the fee notes were not presented, the fact that fee notes and reminders had been provided by the appellant indicating a belief that he expected to be paid, the failure of the respondent to inform the appellant that fee notes had not been presented, and the likely financial consequences of same for the appellant, that the respondent was guilty of professional misconduct by not presenting any of the appellant’s fee notes to clients and thus failing to use his best endeavours to recover the appellant’s fees.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Key Cases Cited:

Corbally v Medical Council and Others [2015] 2 IR 304
Fitzgibbon v Law Society of Ireland [2014] IESC 48
Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34
Ulster Bank Investment Funds Ltd v Financial Services Ombudsman [2006] IEHC 323