Gerald Kean has misconduct appeal dismissed

The High Court has dismissed solicitor Gerald Kean’s appeal against a finding of professional misconduct arising out of his handling of a former client’s case.

High Court President Mr Justice Nicholas Kearns yesterday upheld a finding of professional misconduct made by a Solicitors’ Disciplinary Tribunal against the solicitor over his handling of a case brought by Christopher O’Neill.

The judge said the tribunal had “ample evidence to support its conclusions” about Mr Kean, and its findings “could not be considered irrational, speculative, or in any other way lacking a proper foundation”.

However, the court said it would not impose a fine of €20,000 for misconduct on Mr Kean, which had been recommended by the tribunal. The judge said the finding of misconduct against Mr Kean was a harsh enough penalty.

Mr Kean, who was not present, had disputed the findings against him and denies misconduct.

The Law Society opposed the appeal and argued that the tribunal’s findings and fine should be upheld.

The tribunal made findings last May in relation to three allegations against Mr Kean but not in relation to several other complaints made by Mr O’Neill over services rendered by the solicitor.

Mr O’Neill, of Drumsna in Leitrim, had complained that Mr Kean knowingly misled him into believing the solicitor had put in a defence to a district court debt case against Mr O’Neill by Ballycotton Marine Services Ltd in 2005.

That action arose because Mr O’Neill was unhappy with repairs carried out on a boat he owned. As part of Mr O’Neill’s action against the party who did the repairs, he engaged the services of Ballycotton Marine Services.

An engineer with BMS was engaged to do an analysis of the repairs with which Mr O’Neill was unhappy. That engineer subsequently declined to give evidence or allow their report be used as part of Mr O’Neill’s litigation.

When invoiced, Mr O’Neill refused to pay BMS, which brought proceedings in the district court against him. Mr O’Neill said he hired Mr Kean to act for him in that case, which he lost, and said he received a judgment in the post instructing him to pay €1,067.

He made several complaints against Mr Kean in relation to his representation of him. The tribunal upheld Mr O’Neill’s complaints that Mr Kean knowingly misled him into believing a notice to defend the proceedings involving BMS had been submitted.

The tribunal also found the solicitor failed to lodge an appeal against the decree and misled Mr O’Neill into believing it had been lodged.

Mr Justice Kearns said there was “sufficient evidence” before the tribunal “to comprehensively demonstrate beyond reasonable doubt that Kean in effect tried to mislead his own client in a misguided attempt to cover up what initially was an omission”.

He said it was the cover-up of the true facts which drove the tribunal to conclude as it did. If the omission was addressed in a proper way, it would not have led to a finding of professional misconduct, Mr Justice Kearns added.

“Honesty is a fundamental requirement that every solicitor must bring to bear on dealings with his or her own client,” he said.

Costs of the appeal were awarded in favour of the Law Society.

Mr Kean, via solicitor Caoimhe Haughey, issued a statement after the judgment welcoming the decision to remove the fine.