Court rejects suspended solicitor’s attempt to block inquiry into misconduct claims

A High Court judge has refused to grant an order blocking an inquiry into a company's allegations of professional misconduct against suspended Co Roscommon solicitor Declan O'Callaghan.

In a judgment, Mr Justice Anthony Barr said he was satisfied the Solicitors Disciplinary Tribunal (SDT) had jurisdiction to grant an adjournment in the inquiry and in doing so in February 2020 it acted “reasonably, logically and in accordance with the dictates of fairness and justice”.

Mr Justice Barr refused all of the reliefs sought by Mr O’Callaghan, which included an order restraining the SDT from continuing its inquiry into the complaint.

The judge said it would ordinarily be inappropriate for the court to interfere in the ongoing conduct of an inquiry but the “unusual circumstances” in this case – in particular, the inquiry’s lengthy hiatus due to the pandemic – made it appropriate for it to deal with the issues raised in the judicial review.

Mr O’Callaghan, of Sligo Road, Ballaghaderreen, who had practised at Pound Street in the town, initiated judicial review proceedings against the SDT after an adjournment was granted in a February 2020 hearing of a complaint made by a Co Mayo concrete product manufacturer, Nirvanna Property Holdings Ltd.

Mr O’Callaghan denies the allegations made against him over legal services concerning the sale of lands in Co Mayo 16 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.

At the December High Court hearing, lawyers for Mr O’Callaghan argued that the tribunal’s handling of the inquiry into the allegations was so flawed that the court should prohibit it from continuing.

Counsel queried, among other things, whether Tom Fleming, who, with Seán Fleming, made the complaint on behalf of Nirvanna, could represent his company in light of legal regulations to the effect that a limited company cannot be represented in proceedings by a director. It was argued that the SDT erred in law by granting an adjournment of the hearing on the application of Mr Fleming so he could obtain legal representation for the tribunal.

The Solicitors Disciplinary Tribunal disputed the claims and contended that allegations of “very serious” professional misconduct against O’Callaghan should not be stopped.

Mr Justice Barr said he was not satisfied there was any substance to jurisdictional issues raised in relation to whether the company had authorised the Flemings to make the application in 2010 for an inquiry on its behalf. He said the SDT was entitled to proceed on the basis that Tom Fleming, who was at all times either a company secretary or director of the company, as well as a shareholder, had been properly authorised to represent the company.

The SDT was entitled to consider the adjournment application and to grant it in the circumstances that arose in February 2020, said the judge. It had been anticipated at the time that the adjournment would be short and would not have caused prejudice, but the onset of the Covid-19 pandemic and the bringing of these High Court proceedings caused delay, he added.

Mr Justice Barr invited parties to make submissions as to legal costs.

The High Court suspended Mr O'Callaghan's practising certificate in July 2018. In November 2019, at a separate inquiry before the SDT, 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.