Cork solicitor loses appeal over misconduct finding; Threatened to destroy client files

Cork solicitor loses appeal over misconduct finding; Threatened to destroy client files

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 matter.

In 2017, the High Court affirmed a Solicitors Disciplinary Tribunal (SDT) 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 today, a three-judge Court of Appeal (CoA) 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 31, 1999.

That case was eventually struck out on grounds of delay.

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

In 2006, Mr Sheehan took on the Binghams' case but a dispute arose over payment of fees in their case against the Mater.

Mr Sheehan sued the couple for €37,725 fees and they brought a counter-claim against him for professional negligence and breach of contract. Both those cases were dismissed.

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 Mater case unless the couple settled his fees bill. They wanted the file so they could appeal the Mater case to the Supreme Court.

Following hearings before the SDT in 2015 and 2016, the tribunal 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 SDT found him guilty of professional misconduct.

In his High Court appeal against that finding, Mr Sheehan challenged the SDT'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 SDT 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 SDT made adverse findings against him did he bring an appeal, the High Court also said.

Dismissing his latest appeal, the CoA's Ms Justice Caroline Costello said while a solicitor can exercise a hold over a file and refuse to return a file 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.

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