Inquiry into ‘very serious’ allegations against suspended solicitor should proceed, court told

An inquiry into allegations of “very serious” professional misconduct against suspended Co Roscommon solicitor Declan O’Callaghan over the handling of a €250,000 land sale should not be stopped, the High Court has been told.

Ailbhe O’Neill BL, for the Solicitors Disciplinary Tribunal, rejected arguments on behalf of Mr O’Callaghan that the tribunal’s handling of the inquiry was so flawed that it should be prohibited from continuing by the court.

Mr O’Callaghan’s complaints over the tribunal’s February 2020 decision to adjourn the inquiry would be more appropriately addressed via a statutory appeal once the process has concluded, she said.

The tribunal would not be minded to abandon the inquiry into allegations of “very serious” professional misconduct on foot of complaints concerning the technical standing of Tom Fleming — who, with Sean Fleming, made the complaint on behalf of Nirvanna Property Holdings Ltd.

Mr O’Callaghan denies the allegations made against him over legal services concerning the sale of lands in Co Mayo 15 years ago. It is alleged that he purported to act for both vendor and purchaser where there was allegedly a clear conflict of interest and provided inadequate professional services.

After a two day hearing, Mr Justice Anthony Barr on Wednesday said he would rule as soon as possible on Mr O’Callaghan’s attempt to halt the inquiry.

Mr O’Callaghan, of Sligo Road, Ballaghaderreen, who had practiced at Pound Street in the town, took the judicial review proceedings against the tribunal over its handling of the inquiry on February 11th, 2020 and the decision to adjourn it to late May.

He attended the tribunal on the first day where his counsel queried whether Tom Fleming could represent his company in light of legal regulations to the effect that a limited company cannot be represented in proceedings by a director.

‘Blocked’

Tom Fleming told the trying he had been trying to get a solicitor for 10 years but had been “blocked” by the Law Society. After a short recess, he sought an adjournment and Mr O’Callaghan’s side objected to this because the tribunal had found Tom Fleming could not represent his company.

The tribunal said it adjourned on the basis that the inquiry had not “commenced” because Mr O’Callaghan’s side had raised a preliminary matter. Its rules allowed it to postpone further steps in the matter and it was obliged to hold an inquiry to consider the allegations against Mr O’Callaghan.

He maintains the inquiry had commenced and, as the tribunal had found Tom Fleming could not represent the company, there was no “bona fide” application for an adjournment. He says the tribunal should have considered evidence such as forms completed on behalf of the company and affidavits from Mr O’Callaghan rebutting the allegations.

In closing arguments for Mr O’Callaghan, John Shortt SC said the tribunal’s primary obligation is surely to ensure it has jurisdiction to deal with a complaint and that a complaint is properly before it.

‘Fast and loose’

The tribunal had adopted a “fast and loose” approach to filling in the relevant forms concerning complaints, he argued. Documents from the Flemings should have raised a “red flag” for the tribunal concerning their authority to represent the company and the jurisdiction of the tribunal to deal with this complaint. His client was prejudiced by the adjournment and the failure in February 2020 to properly finalise this matter, he said.

The tribunal is effectively saying Mr O’Callaghan’s complaints against it can be addressed when the tribunal reconvenes, but the court should not endorse this “sloppy” approach to allegations of professional misconduct now 10 years old, counsel said.

The High Court suspended Mr O’Callaghan’s practising certificate in July 2018. In November 2019, at a separate inquiry before the tribunal, he admitted professional misconduct arising from unlawfully retaining client funds concerning a house sale and was told to pay €10,000 compensation to the Law Society.

Separately from the Nirvanna matter, he is subject of another inquiry before the tribunal which has not yet been heard.