Safeguarding the Collective Reputation of a Profession

In a recent judgment of the High Court, Law Society –v- Enright [2016] IEHC 151, Kelly P gave effect to the recommendation of the Solicitors Disciplinary Tribunal and the Law Society that a solicitor’s name be struck off the Roll of Solicitors on the basis that to do so was necessary “in order to maintain the reputation of the solicitors’ profession and to sustain public confidence in the integrity of that profession”. Having qualified as a solicitor in 1986, Mr. Enright entered into private practice before taking up a position within a subsidiary of an American medical insurance company in 1988. In 1994, Mr Enright was charged with ten acts of forgery of medical insurance claims seeking payment of medical expenses purportedly incurred by persons insured by his employer. While criminal proceedings commenced in 1996, Mr. Enright was not convicted and sentenced until June 2013, the delay being attributable in large part to Mr. Enright’s various applications to the High Court, the Supreme Court, and the European Court of Human Rights. In the intervening twenty years, Mr. Enright had carried on practising as a sole practitioner and had, as was accepted by Kelly P, “conducted his practice with complete propriety”. In 2015, the Law Society brought an application for an Inquiry before the Disciplinary Tribunal. The allegation was that Mr. Enright had been convicted of fraud offences and sentenced to a term of one year’s imprisonment. Mr. Enright attended before the Tribunal and admitted the factual content of the Society’s application, and the allegation of misconduct against him, but pled mitigation. The Disciplinary Tribunal made a finding of misconduct, to the effect that Mr. Enright was not a fit person to be a member of the solicitors’ profession and that his name should be struck off the Roll of Solicitors. In arriving at his decision, Kelly P referred to the dictum of Sir Thomas Bingham M.R. in the case of Bolton v. Law Society [1994] 1 WLR 512:

It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. 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. […] 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. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. […] Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.

Kelly P went on to trace a strand of subsequent judicial support for these statements, contained in the decision of Finnegan P. in Carroll v. the Law Society of Ireland [2005] IEHC 199 as well as the judgment of Moses L.J. in Law Society v. Emeana & Ors. [2013] EWHC 213, before giving effect to the recommendation of the Disciplinary Tribunal and the Law Society, and ordering that Mr. Enright’s name be struck off the Roll of Solicitors for the following reason:

The purpose of this order is not punitive as he has already been punished with a term of imprisonment. It is not directed to ensuring that he does not have the opportunity to repeat an offence or offences of dishonesty. I am satisfied that there is no danger of that. The sole purpose is to maintain the reputation of the solicitors’ profession “as one in which every member, of whatever standing, may be trusted to the ends of the earth” (per Bingham M.R.).

Notwithstanding ‘time served’, and the absence of any ongoing risk to the public, acts of fraud or dishonesty on the part of professionals that may serve to undermine public trust can operate to justify expulsion in and of itself. The unique facts of Mr Enright’s case highlight the considerable responsibility that each individual member bears in safeguarding the collective reputation of the profession to which they belong, and the correspondingly severe sanctions that can be imposed as a result of failings in this regard. The judgment is available here. Author: James Gallagher