Mick Clifford: Cause for complaint over legal regulation

The ordeal endured by a Cork woman in making a complaint against a solicitor raises questions about how such complaints are dealt with and public confidence in the system

Mallow-based solicitor John Moylan at the Solicitors Disciplinary Tribunal on Bow St, Dublin, where he was found guilty this month of professional misconduct, having falsely ‘witnessed’ the signature of a client, Deirdre O’Flynn, on 18 separate documents. Picture: Gareth Chaney/Collins Photos

On April 6, the Solicitors Disciplinary Tribunal (SDT) found John Moylan guilty of professional misconduct.

Mr Moylan, a Mallow-based solicitor, had falsely “witnessed” the signature of a client, Deirdre O’Flynn, of Ballyclough, Mallow, on 18 separate documents.

Ms O’Flynn had been a co-director of a property company run by her husband, Billy O’Flynn.

Her signature had been forged and she was not present when Mr Moylan, or an associate solicitor, had purported to witness her signature, as per company law. Billy O’Flynn was not at the tribunal. An earlier hearing was told he is now living in England.

The issue was extremely serious, as reflected by the finding of the SDT.

Following the finding, Ms O’Flynn’s counsel told the tribunal that she did not wish to see Mr Moylan’s employment impeded.

Taking this, and an apology from Mr Moylan, into account, the tribunal ordered him to donate €15,000 to a solicitors’ fund and to pay a further €15,000 towards Ms O’Flynn’s costs.

Lengthy battle

The result came at the end of a lengthy battle by Ms O’Flynn to clear her name following the collapse of the property company in 2013.

In 2018, she embarked on making a complaint against the solicitor. The road she had to travel raises serious questions about how complaints against solicitors are dealt with and whether the public can have confidence in the system.

BOD Investments was set up in 1994. Billy O’Flynn was the majority shareholder.

His wife Deirdre had one share and was a non-executive director. The company traded in property. Between 1997 and 2011, the company solicitor, Mr Moylan, or an associate, claimed to have witnessed on 18 documents Ms O’Flynn signing her name 22 times.

These documents were connected with buying and selling property and bank loans. This only came to Ms O’Flynn’s attention after the company collapsed.

In 2012, she heard through a third party that there were serious problems with the company. She sought separate legal advice when she realised the enormity of what had occurred.

Another element of her complaint against Mr Moylan would be that he had misled her new solicitor.

Dealing with the fallout from the collapse of the company preoccupied Ms O’Flynn between 2012 and 2018. In 2015, she had to appear before the High Court where there was an application by the liquidator for the company to have her restricted as a director.

However, the judge found in her favour, stating she was “honest and honourable in all her dealings with the company”. Billy O’Flynn did not challenge his disqualification. During that time, Ms O’Flynn felt she had to retire from the teaching post she had held in Cork City for 20 years.

“Due to the enormous pressure I was under, I felt I could no longer give the care and attention my students deserved and I retired in 2016,” she told the Irish Examiner.

In 2018, she wrote to the Law Society to complain about how Mr Moylan had failed to act responsibly in his capacity as a solicitor in a number of different respects.

The society replied that it was not in a position to process the complaint.

She then wrote directly to the SDT, an independent body appointed by the High Court. The tribunal consists of three members: Two solicitors, one of whom chairs the tribunal, and a lay member. The solicitors on the tribunal are drawn from a panel.

The process involves a preliminary hearing to determine whether there is a prima facie case which would mean the complaint can advance to a full, public inquiry. For instance, in 2019, the last year for which the SDT annual report was published, there were 72 complaints processed at the preliminary stage and 22 that went to full inquiry.

Ms O’Flynn complained on a number of grounds, including the false witnessing of her signature on numerous occasions and that Mr Moylan had misled her new solicitor.

After receiving the complaint, the SDT wrote to her with a list of the 19 solicitors on its panel, asking whether she had objections to any of them sitting on the tribunal.

She replied: “While I believe all the solicitor members listed are excellent in their own right, I would have an objection to any solicitor from Cork City and county, Kerry, and Tipperary dealing with the matter as Mr Moylan’s practice would extend to those areas.

“I believe some of the more senior members may have been in college or done training with Mr Moylan.”

She also requested that the tribunal confirm from any of the candidates whether they knew or had dealings with Mr Moylan. There followed three preliminary sittings of the tribunal to decide whether the complaint merited a full public hearing. The second and third sittings were chaired respectively by solicitors from Charleville — 15 miles from Mallow — and from Cork city. Of the 19 solicitors on the panel, just three were from Cork City or county, but the tribunal apparently was not in a position to comply with Ms O’Flynn’s request, despite having itself raised the issue of the composition of the tribunal in the first place.

No grounds for full hearing

In February 2020, the tribunal decided that there were no grounds for a full hearing. The reason for dismissing the complaint over the false witnessing of her signature was: “In view of the time which has elapsed since the alleged misconduct it would be oppressive and unfair to make a finding that there is a prima facie case of misconduct on the part of the respondent solicitor for inquiry.”

The complaint that Mr Moylan had misled Ms O’Flynn’s new solicitor was dismissed on grounds of “insufficient evidence”. The reason of “time elapsed” for a failure to inquire fully into the false witnessing was notable. The complaint did not concern a single incident, but a whole pattern spread over 14 years up to 2011. Ms O’Flynn did not become fully aware of the incidents until 2014. Despite the SDT making its decision in February 2020, Ms O’Flynn was not informed until June, some five months later.

“I was dismayed at the outcome,” she said.

She was notified that she had 21 days to appeal.

Decisions from the SDT can only be appealed to the High Court, which comes with the risk of huge legal costs. Because of the financial burden attached, Ms O’Flynn felt the only route open to her was to represent herself in the High Court.

She managed to assemble the documentation, including an affidavit, and lodged her appeal on the last allowable day. The hearing was scheduled to take place on December 16, 2020.

Two days before the hearing, she received correspondence from a leading Dublin solicitors firm representing the SDT.

“I received what I believed to be a very intimidating email,” said Ms O’Flynn.

“They wanted me to confirm that I would not bring up a claim of perceived bias against the tribunal in the High Court and that if I didn’t give them full confirmation of this they would reserve the right to apply for orders requiring me to pay its legal costs. I thought this was very heavy-handed.

“They had months to study my documents yet they gave me, a lay litigant, two working days and wanted an immediate response. So now I found myself up against two formidable legal teams, one acting for the SDT and the other for Mr Moylan. I found this extremely stressful.”

In the High Court, she presented her evidence for an hour and a quarter before Judge Richard Humphreys.

He found that, on the two most important grounds of her complaint, the false witnessing and misleading her new solicitor, she was entitled to the full hearing which she had been denied.

Damning ruling

The judge’s ruling was pretty damning.

“The fact that both of the matters [the two grounds] in which I consider that there was a prima facie case relate to questions of honesty and also go well beyond the ‘he said, she said’ and have documentary support, means that the question of lapse of time is less decisive than might otherwise be the case,” Mr Justice Humphreys ruled.

“Also reducing the relevance of delay is the fact that the appellant was blindsided by the alleged fraud which she says was facilitated by the false witnessing of documents. She only found out about it at a much later stage so she can’t be held responsible for any delay prior to that point.

“Furthermore, even if I am wrong that I don’t have to identify an error in the tribunal’s approach, I would hold that the appellant has persuaded me that there are serious and significant errors by the tribunal warranting the court’s intervention.”

Ms O’Flynn felt vindicated by the outcome.

“I felt I had been backed into a corner,” she said. “I never wanted to go to the High Court but it was the process used by the tribunal that made me seek an appeal. I had a major issue with how they dealt with my complaint.”

She subsequently wrote to the SDT, expressing her disappointment at how the matter had been handled and asking why, having requested that solicitors in south Munster be excluded from hearings, two were from so close to Mallow. She did not receive a reply.

Having been sent back to the SDT by the High Court, the case was heard at the body’s premises in Dublin over three days in November, February, and April. By this time, Ms O’Flynn had retained legal representation.

Cross-examining Mr Moylan, Ms O’Flynn’s lawyer Maura McNally asked him to explain to the tribunal his interpretation of the word ‘witness’ and its application to legal documents.

“It means present,” Mr Moylan replied.

“Do you now accept that that is a lie; you were not present when you signed there and said, I, John Moylan witnessed the signature of Deirdre O’Flynn?”

The witness replied: “I was not present. She was not present when I witnessed her signature. That is correct.”

A few minutes later, Ms McNally returned to the same theme: “So you were wrong to write where it says ‘witness’, you were wrong to put your signature, your occupation, and your date?”

He replied: “I was, but I believed that the signature was genuine and I had no reason to believe otherwise.”

The cross-examination went on: “So you were not there, this is a lie, your signature is a lie when it says you witnessed her?”

“I had an honest belief that it was her signature.”

The tribunal found Mr Moylan guilty of professional misconduct on the false witnessing but not so in relation to misleading Ms O’Flynn’s new solicitor.

New system

The tribunal is currently working out complaints that were lodged before October 2019, when a new system, under the auspices of the Legal Services Regulatory Authority, came into being. Misconduct complaints will now be dealt with by a new body, the Legal Practitioners Disciplinary Tribunal.

The new tribunal will have a lay majority and lay chair.

The Irish Examiner submitted questions to the SDT about its inclusion of solicitors from the Cork area in its initial hearings and the four-month delay in informing Ms O’Flynn that the preliminary hearing had decided not to grant a full hearing.

It said it does not comment on individual cases.