Solicitor who borrowed €27k from elderly woman who cares for husband and another adult is struck off

The 2017 findings by the Solicitors Disciplinary Tribunal followed earlier findings by the SDT against Mr Cunningham in July 2016 of misconduct over failure to comply in a timely manner with other undertakings, which lead to an order permitting Mr Cunningham practice only under the supervision of another solicitor.

Mr Cunningham, formerly practising as Cunningham Solicitors, Emily Square, Athy, was given time to wind down his practice and effectively ceased practice in March 2017.

Arising from the 2017 findings of professional misconduct, the Law Society secured a strike off order today against Mr Cunningham.

That order was necessary to protect the public and to maintain the reputation of the solicitors profession as one that can be trusted "to the ends of the earth", the president of the High Court, Mr Justice Peter Kelly said.

The SDT had recommended a lesser sanction than strike off, that Mr Cunningham be instead permitted continue practice under supervision.

Nessa Bird BL, for the Society, argued strike off was necessary. She said Mr Cunningham had debts of more than €400,000 and the client from whom he had borrowed the €27,000 was still owed about €17,000 with little chance of recovery.

The affected client had complained he told her he needed the money for a tax clearance certificate but when she asked him for repayment over time, he gave her "one excuse after another".

The client had taken Circuit Court proceedings and got an order for judgment but was still not fully repaid.

Because there was no dishonesty by Mr Cunningham in these matters, the client is not eligible for compensation from the Law Society Compensation Fund, counsel said.

Mr Cunningham had fallen short in relation to the need for trust in a solicitor when handling client monies and the situation was exacerbated by his failures to adequately respond to correspondence from clients and the Law Society, she said.

Sean Sexton, representing Mr Cunningham, said he had borrowed the €27,000 to try and get the tax clearance certificate necessary for him to be paid for criminal legal aid work he had done. Some of Mr Cunningham's difficulties arose because he was owed monies and had sought to resolve issues he had with the Revenue, to which he had paid €100,000, he added.

Mr Cunningham was unable to honour the undertaking at issue because the Revenue had apparently lost or mislaid a relevant deed but he had resolved issues about other undertakings provided by him, he said.

Mr Cunningham had said the failure to repay the actuaries was a mistake but he hoped they would be reimbursed because, when he ceased practice, he had handed over a large personal injury claim to a colleague.

Mr Sexton also said his client is aged 50 with health issues, his only income now is a €196 weekly disability allowance, he had been offered part work with another law firm and striking him off would be very serious for him and not assist in repaying the monies.

In his ruling, Mr Justice Kelly said he was particularly concerned Mr Cunningham had borrowed money from a client, which was a breach of solicitors' guidelines; did so without advising her of the need to seek independent legal advice, another breach, and had not repaid the full amount.

The client is a vulnerable 77-year-old woman caring for an elderly husband with Alzheimer’s and an adult with special needs who had said she needed the money repaid but she was still owed some €17,000.

He was also very concerned about the failure to pay the actuaries monies due to them and to comply with the undertaking. If there was any tolerance of slippage concerning obligations to comply with undertakings, the "hard currency" of the profession would be irreparably damaged.

While accepting there was no allegation of dishonesty, the circumstances required strike off, he ruled.