The Law Society has initiated a High Court application aimed at having suspended solicitor Declan O’Callaghan struck off the roll of solicitors for professional misconduct over his handling of a land deal in Co Mayo.
The society’s application is on hold pending the outcome of Mr O’Callaghan’s challenge over the procedures adopted by the Solicitors Disciplinary Tribunal in reaching its findings last year of professional misconduct over the 2007 land deal. Mr O’Callaghan claims the tribunal breached his rights to fair procedures.
The society, in documents put before the High Court president Mr Justice David Barniville on Monday, agreed with the tribunal’s strike-off recommendation. Neither the tribunal nor society can make strike-off orders. Instead it is a matter for the courts.
Barrister Michael Mullooly, for Mr O’Callaghan, said his client was bringing a judicial review-type application over the tribunal’s procedures. If his challenge succeeded the issue of a fresh appeal would arise.
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Barrister Ruadhán Ó Chiaráin, for Nirvanna, the company that brought the complaint to the Solicitors Disciplinary Tribunal, said issues arose as to whether the “convoluted judicial review” proposed was permissible under the relevant law.
His concern was this was “kicking the can” away from the substance of the matter. His side asserted wrongdoing, Mr O’Callaghan denied that and the proposed challenge would not address that issue, he said.
Barrister Neasa Bird, for the society, said it was joined to the matter for purposes of putting a report before the court for imposition of sanctions on Mr O’Callaghan. The society’s application was subject to the outcome of his challenge, the society was not a participant in that challenge.
Having heard the sides Mr Justice Barniville made directions for the exchange of legal documents and returned the matter to April 2nd.
The three-member tribunal last summer found Mr O’Callaghan guilty of four counts of professional misconduct over his handling of the 2007 land deal involving a company of Co Mayo businessman Tom Fleming.
Mr Fleming, now aged 80, claimed Nirvanna never received €250,000 for selling the land to a now-deceased businessman. Mr O’Callaghan denied the sum was owed, and disputed the transaction was for “sale” of the lands.
The tribunal upheld the Nirvanna complaint, finding professional misconduct on the grounds Mr O’Callaghan breached his duty of care to the company, provided inadequate professional services, and purported to act for vendor and purchaser in a transaction where there was “a clear conflict of interest”.
In making its strike-off recommendation, the tribunal also had regard to two findings of professional misconduct previously made by it against Mr O’Callaghan, who has been suspended as a solicitor since 2018 arising from a separate Law Society investigation into matters at his now defunct practice Kilrane O’Callaghan & Co, which was based in Ballaghderreen, Co Roscommon.
The suspension was imposed pending a Solicitors Disciplinary Tribunal hearing of the society’s application for an inquiry into matters arising from its investigation. Concerns raised in an independent solicitor’s report for that investigation included that Mr O’Callaghan withdrew substantial fees from the estate of a bereaved child.
Findings of professional misconduct were previously made against Mr O’Callaghan in 1990 and 2019.
The 1990 finding was made on grounds including Mr O’Callaghan had, improperly and knowingly, applied clients monies for personal benefit, namely the purchase of a private dwelling residence and a car, and the making of repayments to a building society. That led to a High Court direction in 1991 that he should practice for some three years under the supervision of a more senior solicitor.
In November 2019 the tribunal found him guilty of professional misconduct over findings including he failed to remit costs and outlays to a law firm arising out of litigation between their client and a deceased person, resulting in Circuit Court proceedings being issued against the complainant firm’s client.
Mr O’Callaghan was censured and ordered to pay €10,000 to the Law Society’s compensation fund, plus €7,500 towards the society’s costs.
