Solicitor struck off by High Court over failure to honour undertakings

The president of the High Court has struck off a solicitor after he was found guilty of professional misconduct over his failure to comply with two undertakings given by him concerning charges over properties.

Thomas O’Donoghue, who formerly practised as principal of O’Donoghue & Co Solicitors, Egan’s Lane, Tuam, Co Galway, closed that practice in 2011 and has not taken out a practising certificate since, Mr Justice Peter Kelly noted.

For reasons including the importance of trust in solicitors’ undertakings and because Mr O’Donoghue had closed his practice in 2011 “leaving it to others to pick up the pieces”, the Law Society sought the strike off order.

The Solicitors Disciplinary Tribunal (SDT), noting an earlier order of June 2015 would prevent Mr O’Donoghue practising except under supervision, had recommended no additional sanction or strike off.

The matter came before Mr Justice Kelly arising from findings of professional misconduct made by the SDT earlier this year against Mr O’Donoghue who did not attend the SDT hearing and was not represented.

The SDT found Mr O’Donoghue failed to comply with an undertaking of September 18th, 2017 given to Bank of Ireland Mortgages concerning a property: a block of apartments. While the bank had its charge over the property, the title deeds have yet to be located.

It also found he had failed to comply with an undertaking of May 7th, 2010 given to another law firm to assist in perfecting their client’s security on a property. The SDT was told the relevant charges have never been registered.

The SDT also made findings concerning the solicitor’s failure to respond to its correspondence concerning a complaint against him and that, when he closed his practice, he failed to provide an accountant’s report for the year ended June 30th, 2011 in breach of the Solicitors Accounts Regulations.

Professional misconduct was previously found against him over failure to comply with an undertaking dated February 3rd, 2009 and failing to respond adequately or at all to correspondence from that complainant and the Society.

When the matter came before Mr Justice Kelly on Monday, Mr O’Donoghue was not in court and was not represented

In his ruling, the judge noted the solicitor unfortunately had a previous disciplinary record before these complaints.

The Court of Appeal’s description of solicitors undertakings as part of the “hard currency” of the profession, the honouring of which is core to ensuring that public trust in the profession is retained, is “not just good law but also good sense”, he said.

In this case, Mr O’Donoghue has taken no steps to bring about compliance with the undertakings and had also failed to reply to the Law Society and Bank of Ireland Mortgages over a long period, he said. This showed an “entirely wrong” attitude by the solicitor towards his regulator and did himself no good when it came to considering penalty.

He did not believe the SDT was correct in deciding these two undertaking issues were just part of a pattern not meriting additional sanction, the judge said.

While the number of undertakings was small by comparison to other cases, it was still serious and the fact the non-compliance is still extant is relevant, he said. Mr O’Donoghue had also just closed his practice and left others to worry about the consequences.

The failure to honour undertakings is so serious as to warrant the court sending a message, because trust is the very cornerstone of the profession, it is necessary, with a view to maintaining the integrity of profession, where there is a breach of trust, the appropriate penalty is strike off, he ruled.