THIRTY SEVEN
Dolores Maxwell.com
 



In keeping silent about evil, in burying
it so deep within us that no sign of it appears
on the surface, we are implanting it, and it will rise up a thousand fold in the future.
When we neither punish nor reproach evildoers,
we are not simply protecting their trivial old age,
we are thereby ripping the foundations of justice
from beneath new generations.



- Aleksandr I. Solzhenitsyn, The Gulag Archipelago 1918-1956

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Following the extraordinary decision by the Solicitors Disciplinary Tribunal that there was no prima facie case of misconduct by Dolores' solicitor Damian Brass, Saoirse Maxwell began to consider an appeal to the High Court. As stated in the Solicitors Disciplinary Tribunal Rules, an applicant has twenty one days in which to lodge an appeal:

…any person who has made an application … may appeal to the High Court within 21 days -

(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry or
(b) against a finding of the Disciplinary Tribunal that there has been no misconduct

and the Court may –

(ii) … make a finding that there is a prima facie case in relation to the allegation of misconduct and require the Disciplinary Tribunal to proceed to hold an inquiry or
(iii) … rescind or vary any finding of the Disciplinary Tribunal that there has been no misconduct …


The information published on this website in Example 1 and Example 2 is typical of the evidence Saoirse had carefully gathered to support her complaints of misconduct. It seemed unbelievable that the Tribunal would consider that Damian Brass had "adequately rebuffed" the evidence. The two Examples we have published detail but a small fraction of the complaints and evidence presented to the Tribunal.

[Editor's note: For instance, the Tribunal was provided with stark and plain documentation that Damian Brass perjured himself not only to Revenue, but to the Tribunal itself. And the list goes on and on. ]

It became impossible to conclude that the Tribunal based their decision on the evidence.

The members of Dolores-Maxwell.com reached out to each of the Tribunal members ago seeking clarification, explanation, or at least a comment on their peculiar decision. It is not surprising that neither Hugh O'Neill (Chairman of the Division), solicitor Caroline Devlin, or layperson Dermot Eagney have responded. Then again, we are at a loss to imagine how any of them could offer an adequate and reasonable argument supporting their decision.

Surely the High Court would act differently. Wouldn't they?

Perhaps. But then Saoirse was no longer willing to blindly trust an official body in Ireland to fulfil its duty, having been disappointed time and time again. Research was needed in order to inform her decision on whether to appeal.

Like the original complaint to the Tribunal, this appeal would be motivated by the hope of calling Ethan Maxwell to account, and opening a wider investigation concerning the role Ethan and Jaggers and Brass Solicitors played - not only in the abuse of Dolores and Cecil, but also in the case of Ethan's elderly uncle Patrick Maxwell, which bears striking similarities to Dolores' final year.

Court Structure, Ireland
Ireland's High Court consists of its President, Mr. Justice Nicholas Kearns (since October 2009), and thirty-six other judges. Among it many areas of jurisdiction is reviewing decisions of certain Tribunals, including the Solicitors Disciplinary Tribunal.
High Court President Kearns





According to The Irish Legal Information Initiative at University College Cork and the Courts Service there have been 16 appeals to the High Court seeking relief after the Solicitors Disciplinary Tribunal returned a finding that there was no prima facie case for an inquiry or that there was no misconduct on the part of the solicitor(s) named in a complaint. These records date back to 1996.

Fourteen of those 16 appeals were decided by the President of the High Court, Nicholas Kearns. He rejected them all, usually with brief, one page decisions. There have been no successful appeals of this nature in this century.

In fact you would have to go back 14 years to find the one and only successful appeal of the Tribunal's decision of no misconduct or no prima facie case for an inquiry. For the record, here are links to the decisions:


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Given this interesting record, Saoirse felt that an appeal would most likely be futile. It seemed to her that the whole process was predetermined, and decided by things other than the evidence and justice.
[Editor's note: We agree, and consider it another example of the way things work in Ireland. It might even give some insight into Damian Brass' seemingly cavalier attitude to the Tribunal. Perhaps he knew that the outcome was never in doubt? ]

The 21 day deadline for filing an appeal was fast approaching. On foot of the High Court's record, and seeing that some of these cases took years to be decided, Saoirse determined that there would be no appeal…

…then she received information that caused her to change her mind.

The Four Courts, Dublin. Published under a Creative Commons Licence, image by Kieran Lynam



Saoirse learned from a source who described himself as having experience with the High Court, that if she lodged an appeal then her complaint, the solicitors' responses, and all the underlying documentation and exhibits would become part of the public record. This was a very, very strong incentive to appeal! To have all that information exposed to the light would most certainly be worth the time, effort and expense that an appeal would require. And so, notwithstanding the daunting realities of appealing, Saoirse prepared to go forward.

[Editor's note: For example, just providing the documents to the parties she was required to when filing the appeal would have resulted in copying charges of well over €1300. Then there was the time and expense of having everything sworn and posted, etc. ]

Although she had little reason to doubt her source's information, Saoirse's years in journalism told her to check it out. Alas, the information from her source turned out not to be true. The fact was, appealing to the High Court would not have placed everything “in the public record.” On the contrary, it would have thrown it into a black hole. It works like this: 

Ireland's “The Freedom of Information Act” was enacted in 1998. It did not start off very strong, with a wide range of broad exemptions for public bodies. It was however, a vast improvement over the Official Secrets Act of 1963, which put severe limits on the dissemination of information by the government.

The FOI Act was further weakened by the Freedom of Information Amendment Act of 2003. As the National Integrity Systems (NIS) Study from Transparency International Ireland puts it:
The FOI Act was widely welcomed when it was introduced in 1997 and seen as an important tool in fighting corruption and engendering public trust in Government.

Its effectiveness was undermined however with the adoption of the Freedom of Information (Amendment) Act 2003. Further restrictions on access to Government Memoranda and other aspects of Government work were strengthened.

In addition, fees for requests and appeals were introduced which were “unparalleled in any other country that has an Information Commissioner.” [Quote from the Ombudsman, Annual Conference of Assistant Secretaries, 3 March 2005]

The Government introduced these restrictions and fees in the absence of consultation with the Information Commissioner. There was a subsequent sharp drop in usage of the Act.

The Information Commissioner found that since the introduction of fees the overall usage of the Act declined over 50%, requests for non-personal information declined by 75%, requests from journalists down 83% and businesses were 53% less likely to use the Act.

FOI

Yes, Ireland's FOI is not for those who are not committed to a protracted struggle which will extract a price in both time and treasure. Not only has the government exempted a good portion of itself, it gave itself a creative safety valve. From the Act:

PART V
MISCELLANEOUS
[SU41]
41._(1) Where notice of a decision… is not given to the requester concerned… before the expiration of the period specified for that purpose… a decision refusing to grant the request… shall be deemed…to have been made upon such expiration and to have been made by a person to whom the relevant functions stood delegated…

So whichever body is requested for information under FOI can simply ignore the request, wait for the deadline to pass, and then consider the request denied with no explanation needed. Irish “transparency.” Curious…

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The High Court is not subject to FOI, as Information Commisioner Emily O'Reilly found out. Not only are the courts outside of FOI, but even a request for access to information that was entered during an open trial was rejected by the court. We note that the courts do not allow any recording devices in the courtroom, except as used by the court itself, and have tried in the recent past to prevent journalists from being present in an "open trial." Even if a person is a party to a court case, the court will not release documents or transcript to them except as part of an appeal to a higher court.

Saoirse, after much consideration, decided not to attempt an appeal to the High Court, which would have allowed the court, in effect, to control the documents of her complaint to the Solicitors Disciplinary Tribunal.

[Editor's note: The members of Dolores-Maxwell.com have decided to publish sometime in the future Saoirse's complaint to the Tribunal and the other documents involved, for the public record and in the public interest. Although her complaint was in the end unsuccessful, a wealth of information regarding the events surrounding Dolores was gained. That in itself made the labourious process more than worth it.

For example, the following document came to light. It is the “medical certificate” that Damian Brass as Dolores' solicitor would have had to rely on in order to register Dolores' Enduring Power of Attorney. We doubt it could have stood up to any sort of challenge.

The name “Dr Catherine O'Sullivan” is entered. There is no person of that name at this medical practice. That name is scratched out.
Then the name “Dr Michael O'Sullivan” is entered. Likewise, there is no person of that name at this practice.
O'Sullivan” is scratched out. The name “Rossiter” is entered above it, creating the name “Dr Michael Rossiter.
The certificate is finally signed with the name “John Rossiter.” The date seems to have been altered.

It is exceedingly curious that Damian Brass would accept this piece of paper as it stands, given that he knew of Ethan Maxwell's attempt in 2006 to take control of his uncle Patrick Maxwell's assets by making Patrick a Ward of Court. Damian Brass in fact facilitated that attempt.

If Dolores' EPA was successfully challenged with this disturbing medical cert, it would leave Ethan a golden opportunity to seek to make Dolores a Ward of Court under the Lunacy Act of 1871.

Dolores EPA "Medical Cert"

We note that although the Tribunal was made aware of this curious document (assuming they looked at the affidavits), they did not seem to think it significant. We disagree.

As another example: Damian Brass told Saoirse that he was not aware of any earlier wills that Dolores might have made, and very strongly and repeatededly discouraged her from lodging any sort of caveat or challenge to her Mom's will.
See A Meeting Between Damian Brass and Saoirse.

Contrary to her solicitor's statement, the complaint process revealed documents that referenced four (and possibly five) different wills between January 2008 and June 2009. Why neither the Tribunal nor Damian Brass seemed to find it at all unusual that a 79 year old widow would change her will so many times in a period of 18 months is baffling.

These are but two examples of the wealth of information uncovered. So we do indeed look forward to publishing Saoirse's complaint.]

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When a solicitor is found guilty of misconduct by the Solicitors Disciplinary Tribunal, the Law Society of Ireland publishes it their Gazette, and they even provide a Solicitor Disciplinary Search feature on their website.

This feature seems to be designed to give the appearance of some vague notion of transparency, while at the same time making it difficult to search.

For instance, input the surname “O'Beirne” and no records show up. However if you input “O’Beirne” a match comes up for Bernard O'Beirne who was sanctioned in 2004 for falsifying his books. What's that? There is no difference between the two? Try it yourself. Copy and paste each one into the search feature that the Law Society provides.

You must have the exact spelling of a surname as the Society recorded it. No wildcards. Or, you must have the exact address that a solicitor practiced at, as recorded by the Society. Entering “337 Ballyfermot Road Dublin 10” brings no results. However, entering “337 Ballyfermot Road, Dublin 10” does.

There are about 300 solicitors who have been sanctioned through the Tribunal process since 2004. Why not have the complete list available for the public? [Editor's note: Our webmaster, who is familiar with databases, searches, and so forth thinks that the Law Society search was purposefully setup to be opaque. Perhaps. It is certainly a telling example of Irish “transparency” once again. ]

Fortunately for members of the public, journalists Gavin Sheridan and Mark Coughlan at TheStory.ie have published a speadsheet that lists the solicitors sanctioned by the Tribunal from January 2004 through June 2011. Using information from the Companies Registration Office, media accounts, and other sources, we have used the information from TheStory.ie to generate this graph:

Graph of Tribunal Sanctions related to Size of Firm

It is unfortunate that neither the Law Society nor the Solicitors Disciplinary Tribunal publishes the instances (like with Damian Brass) where a complaint was lodged and no inquiry took place, or the solicitor(s) were found to have not been guilty of misconduct. Nor can we find any indication of the ratio of solicitors who work in small versus large firms. It is unfortunate, as this graph would have much more meaning, and could have even provided some transparency into the workings of both the Law Society and the Tribunal.

As it stands, the only thing we can say for sure is that solicitors in small firms of less than 6 solicitors were sanctioned 25,700% more often than solicitors in firms of more than 10 solicitors during this period. We note that Jaggers and Brass is a firm of approximately 30 solicitors.



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It seems that sometimes the Solicitors Disciplinary Tribunal and the High Court refuses to impose meaningful sanctions no matter what a solicitor might do. Consider the following case of Solicitors Henry Colley (son of the late Fianna Fail deputy leader George Colley) and Colm Carrol, partners and principals in the firm of Roger Greene & Sons on Bridge Street in Dublin.

These two fine examples of the law profession in Ireland admitted to about 50 charges of gross misconduct, including the following:
  • Hiding €32,000,000 in a secret bank account to evade taxes
  • Pocketing legal fees owed to others
  • Doctoring of their practice accounts
  • Setting up other secret bank accounts
  • A shortfall of some €197,000 in the clients account
  • Funds being used for personal use and to renovate Mr Carroll's wife's farm
  • Lodged clients' outlays to the office account and used these monies to fund office overheads and expenses
  • Seriously misled their own reporting accountants in the production of accounting records

…to name a few of the admitted acts by these stalwarts. The Solicitors Disciplinary Tribunal suspended them for one year and ordered each to pay €50,000 (equal to about €0.03 per €10 of that said €32 million.) The Tribunal described these “sanctions” as “severe.” During this period Carroll and Colley found the time to sue the HSE for unpaid fees of €3.2m.

The Law Society, to their credit wanted them struck off the rolls, and in an unusual move went to the High Court. The High Court however, upheld the Tribunal and refused to place any further sanctions on the two, or refer them to the Department of Public Prosecutions.

The High Court Judge who heard the case, Justice William McKechnie wrote:

“It is sufficient to say that there have been multiple and extremely serious breaches of the Solicitors' Regulations over a period of time with such breaches having been committed in many and diverse respects for which both of these solicitors are responsible.

For a substantial part of the investigation at least probably over its most difficult section, they were not only uncooperative but in fact were downright misleading to the Law Society.

The actual charges in respect of which the matter came before the Disciplinary Tribunal numbered at least fifty and virtually all of them, apart from very few, can only be described as involving a series of orchestrated, intentional and conscious acts of misconduct spreading over a period of time.”

Mr. Justice William McKechnie speaking at the 4th Annual Criminal Justice and Human Rights Lecture at University College Cork. His lecture was entitiled 'Respectable Criminality.' However strong his condemnation, it evidently did not mean that the two rogues should not continue working as solicitors, let alone be prosecuted.

On 14 February the judge said he believed his decision not to strike off the solicitors would help maintain public confidence in the legal profession and uphold the good name of the Law Society.

Excuse us, but how does that actually work, Billy?

The Law Society, in an unprecedented move, appealed to the Supreme Court. The Supreme Court upheld the decision to not strike these fine solicitors off the rolls. What's more, the Court ordered the Law Society to pay Carroll and Colley €100,000 in legal costs.
You can read the Supreme Court Decision here.

Media accounts:
Of course this is not the only case where solicitors have been caught with tens of millions of euros at issue and nothing happens. It's common enough in Ireland. We are not saying that the legal and justice system in Ireland doesn't take crime seriously. No, not at all. Two examples:

Dominic McKevitt and Nemo





Man jailed for failing to pay a €12.75 dog licence fee.    
And here

Expectant mother jailed for not paying €125 littering fee.





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Celtic Knot [Editor's note: In our view, the HSE Elder Abuse Services exists to give the appearance of protecting the elderly, and the Solicitors Disciplinary Tribunal and Law Society Complaints Division exist to give the appearance of regulating the legal profession. Self-regulation has been ineffective in the banking sector, aviation industry, and pharmaceutical industry – to name but a few places where it has utterly failed. Like the Celtic knot, self-regulation is a closed loop.

For a country that presents itself as even vaguely resembling a democracy under the rule of law, allowing lawyers to police themselves is downright silly.


Just sayin'… ]

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This page has sought to explain Saoirse's decision not to appeal the decision of the Solicitors Disciplinary Tribunal and provide a little bit of information regarding Ireland's legal system. We close with a few undeniable simple facts. They are presented as such and we caution the reader to make no inference from them. We do not in any way suggest they have any relationship to the decision of the Tribunal regarding Damian Brass.

  1. The Law Society at any time during this process could have joined Saoirse's complaint, or made an application of their own, but did not.
  2. The Law Society has declined to answer Saoirse's query on why they did not, or whether they even considered the complaint.
  3. The President of the Law Society at the time of Saoirse's complaint was John Costello, who was employed at the firm of Jaggers and Brass. He is now the Senior Vice-President of the Law Society.
  4. The firm of Jaggers and Brass is over 200 years old. Hugh O'Neill, the Chairman of the Tribunal that considered Saoirse's complaint is employed at Marcus Lynch Solicitors. That firm is about 120 years old. Until recently, the two firms were located almost directly across the Liffey River from each other. According to Google Maps, it was a three minute walk from one to the other. When Jaggers and Brass moved to a tonier address on the Liffey, the time increased to 25 minutes.


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[Editor's note: We hope we have presented some of the underpinning that supports our view that the self-regulated legal industry in Ireland is in need of reform. Frankly we consider it a joke. In that vein, we close with an excerpt from the short 1936 film, “Disorder In The Court” starring Jerry Howard, Larry Fine, and Moe Howard.



As always, we seek and encourage anyone with knowledge of Dolores' life and/or the events presented here to contribute to this site. Memories, anecdotes, photos and documents are more than welcome. Clarification, correction and alternative views are encouraged and welcomed. Submissions ]
World Elder Abuse Awareness Day UN Declaration of Human Rights European Year for Active Ageing and Intergenerational Solidarity Towards a Society for All Ages