A High Court judge has upheld a disciplinary tribunal finding against suspended Roscommon solicitor Declan O’Callaghan regarding professional misconduct over his handling of a 2006 land transfer in Mayo.
However, while Mr Justice Micheál O’Higgins said he was “deeply unimpressed” at Mr O’Callaghan’s conduct, he said he was not minded to conclude that the solicitor was “guilty of dishonesty”.
Mr O’Callaghan had appealed the findings of the Solicitors’ Disciplinary Tribunal that arose from his involvement in the transfer of lands over which the vendor claimed to be owed €250,000.
The tribunal upheld the complaints against Mr O’Callaghan made in 2010 by Mayo company Nirvanna Property Holdings Ltd, run by businessman Tom Fleming, and recommended that Mr O’Callaghan be struck off the roll of solicitors.
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That recommendation was put on hold pending the outcome of the appeal, though Mr O’Callaghan has been suspended since 2018 over a separate matter.
Mr O’Callaghan took his appeal against original complainant Nirvanna Property Holdings Ltd, with the Law Society named as a notice party in proceedings.
The Solicitors’ Disciplinary Tribunal made the recommendation in July after upholding a complaint about Mr O’Callaghan’s involvement in a land deal in which the vendor, Nirvanna, never received €250,000.
Mr O’Callaghan appealed the findings of the tribunal, among which were that he acted for both the vendor and the purchaser in a conflict of interest; that he provided inadequate professional services and that he continued to act for the purchaser, the late businessman Fred Preston.
He had claimed he was not given a fair hearing by the tribunal and submitted he had a reasonable apprehension of bias and predetermination against him in the handling of the complaint.
At the High Court on Friday, Mr Justice O’Higgins said he would uphold one ground against Mr O’Callaghan relating to the conflict of interest complaint but dismissed the other three complaints.
In upholding the tribunal’s finding of conflict of interest, Mr Justice O’Higgins said that any solicitor acting for both parties “does so at his peril”.
“It is not remotely surprising that the appellant, by choosing to act for both sides in the one transaction on the facts of this case, gave rise not just to the risk but the actuality that the solicitors’ profession would be brought into disrepute.
“The decision to act for both sides in the circumstances, coupled with the failure to ensure the respondent was separately advised, represented a serious falling short of the standards expected of solicitors,” said Mr Justice O’Higgins.
Mr O’Callaghan had accepted his firm acted for both sides in the transfer but strenuously denied any impropriety.
Mr O’Callaghan submitted the land transfer was to adhere to security requirements demanded by Bank of Ireland for a loan for Western Concrete, which was a joint venture between Mr Fleming and Mr Preston.
[ Declan O’Callaghan: No end in sight as saga of suspended solicitor continuesOpens in new window ]
Mr O’Callaghan said there had been no question of €250,000 being paid to Nirvanna for the transfer and that the figure referred to the valuation of the lands.
The judge allowed Mr O’Callaghan’s appeal against three misconduct charges, including the claim that Nirvanna was owed €250,000. Mr Justice O’Higgins said it had not been proven beyond a reasonable doubt that both parties envisaged that Nirvanna would receive €250,000 for the sale.
He also allowed the appeal on the grounds that Mr O’Callaghan continued to act for the purchaser and a complaint over the adequacy of service provided.
However, Mr Justice O’Higgins said he was “deeply unimpressed” that Mr O’Callaghan did not advise Nirvanna and Mr Fleming to get independent legal advice.
Mr O’Callaghan has been suspended since 2018 on foot of a separate Law Society investigation into matters at his practice.
That matter arose from an accountant’s report over a possible client account deficit and the alleged unauthorised taking of fees.
Mr Justice O’Higgins said he was not minded to conclude that Mr O’Callaghan was “guilty of dishonesty” and told counsel for the Law Society that he would hear submissions from them in the new year on costs and what the appropriate sanction should be.
