Solicitor loses appeal over tribunal’s finding of ‘disgraceful’ misconduct

A solicitor found guilty of misconduct over a threat by him to destroy files belonging to two clients because of disputed fees has lost an appeal over the finding.

The High Court in 2017 affirmed a Solicitors Disciplinary Tribunal finding that Barry Sheehan, of Marlboro Street, Cork, was guilty of conduct which was “morally culpable of a disgraceful kind”.

He appealed the High Court decision and a three-judge Court of Appeal has now dismissed the appeal.

The case arose out of a dispute between Mr Sheehan and Co Louth couple, Bernard and Viola Bingham, who had sued the Mater Hospital for alleged misdiagnosis of their 16-year-old son, Mirek, who died in the Dublin hospital on December 31st, 1999. Their case was eventually struck out on grounds of delay.

The Binghams had retained a number of firms of solicitors to act for them in the case, parting company with each of them in turn,the High Court noted in 2017 when dismissing Mr Sheehan’s appeal against the tribunal’s misconduct finding.

Mr Sheehan took on the Binghams’ case in 2006 but a dispute arose over payment of fees. He sued the couple for €37,725 fees and they brought a counter-claim against him for professional negligence and breach of contract. Both of those cases were dismissed.

Abusing position

The Binghams made a complaint to the Law Society saying Mr Sheehan was abusing his position by threatening to destroy the entire file in their case unless the couple settled the bill. They wanted the file so they could appeal the case to the Supreme Court.

Following hearings before the tribunal in 2015 and 2016, it found he had wrongly threatened them with the destruction of files in what was a deliberate act to force them to give him some money for the work he did on their behalf. The tribunal found him guilty of professional misconduct.

In his High Court appeal against that finding, Mr Sheehan challenged the tribunal’s jurisdiction to even hear the complaint against him, among other things.

The High Court said Mr Sheehan had been alive to his claim the tribunal was statutorily precluded from conducting the hearing as far back as 2014 but at no stage did he take any steps to bring judicial review proceedings to stop it.

Only when the tribunal made adverse findings against him did he bring an appeal, the High Court also said.

No fees due

Dismissing his latest appeal, the Court of Appeal’s Ms Justice Caroline Costello said while a solicitor can exercise a hold over a file and refuse to return it where fees are due, Mr Sheehan had sued the Binghams for his fees and his claim had been dismissed. It followed there were no fees due to him and he was no longer entitled to assert a hold over the file.

In an email to the Binghams in June 2014, he demanded payment with a threat to destroy the files over which he had no lien, she said.

“This is professional misconduct on the part of the solicitor,” she said.

She agreed with the High Court that Mr Sheehan had acquiesced to the SDT conducting its inquiry and therefore waived his entitlement to challenge its jurisdiction subsequently.