A High Court judge will rule on Friday on an appeal by suspended solicitor Declan O’Callaghan against findings of professional misconduct over his handling of a land transfer.
Mr Justice Micheál P O’Higgins, after hearing submissions on Monday on the correct legal test for professional misconduct, said he would give judgment on Friday.
Mr O’Callaghan has appealed four findings of professional misconduct by the Solicitors’ Disciplinary Tribunal arising from his handling of the December 2006 transfer of lands in Co Mayo.
After upholding a complaint by Nirvanna Property Holdings, the tribunal recommended last year that Mr O’Callaghan be struck off the roll of solicitors.
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A strike-off application by the Law Society is on hold pending the outcome of his appeal against the tribunal findings.
Mr O’Callaghan has been suspended since 2018 arising from a separate Law Society investigation into matters at his now defunct practice Kilrane O’Callaghan & Co, based in Ballaghderreen, Co Roscommon. Concerns raised in an independent solicitor’s report included that he withdrew substantial fees from the estate of a bereaved child.
Evidence in Mr O’Callaghan’s appeal over the tribunal’s findings was heard in July by the judge.
Mr O’Callaghan said the land transfer was to satisfy some security requirements of Bank of Ireland (BoI) for financing Western Concrete, a joint business venture between businessmen Tom Fleming and Fred Preston.
There was “never any question” of €250,000 being paid to Mr Fleming’s company Nirvanna Property Holdings, for the lands, he said. The reference to a “consideration” of €250,000 in the transfer deed related only to a valuation of the lands, he said.
Opposing the appeal, barrister Ruadhán Ó Ciaráin, for Nirvanna, said a deed for transfer of the lands from Nirvanna to Fred Preston was executed on December 20th, 2006, the lands transferred, Nirvanna was entitled to €250,000 but was never paid.
After the evidence, the judge asked the sides to send him written legal submissions before finalising judgment.
The Law Society did not participate in the appeal but last week, when judgment was due for delivery, its barrister Neasa Bird sought to make submissions about the correct legal test for determining professional misconduct by a solicitor.
Having permitted an exchange of submissions about that, the judge adjourned the matter to Monday.
Ms Bird argued Mr O’Callaghan’s submissions appeared to suggest the test meant the court could only find professional misconduct if dishonesty, fraud or moral turpitude on a solicitor’s part was found. The test also concerns conduct bringing the solicitor’s profession into disrepute, she submitted.
Barrister Michael Mullooly, for Mr O’Callaghan, objected to the society raising the test issue “on the eve of judgment” but said he would address its submissions.
The society was seeking to “move the goalposts” from what the case was about and have the court find Mr O’Callaghan’s conduct was in some way “remiss”, he said.
In disputing that his side’s submissions about the test were misleading, he said the society relied on case law concerning a different type of case involving failures by solicitors, including not complying with accounting regulations.
In this case, what was alleged was something akin to fraud and dishonesty, that Mr O’Callaghan acted with another to deprive Nirvanna of a sum of money, he said.
For reasons including there was no “sale” of the lands, professional misconduct claims such as alleged conflict of interest did not apply, he said.
Mr Ó Chiaráin said there could be “no ambiguity whatsoever” that the claim brought in relation to Mr O’Callaghan was of statutory misconduct.
The judge said he will consider the submissions and give judgment on Friday.
