The Solicitors Disciplinary Tribunal (SDT) has taken issue with the formulation of proceedings brought by suspended Co Roscommon solicitor Declan O’Callaghan over its recommendation that he be struck off for professional misconduct.
The High Court heard Mr O’Callaghan’s legal team needs some time to consider the SDT’s complaints, made in correspondence, about the constitution of his case, which alleges the tribunal breached his right to a fair hearing.
The SDT’s barrister, Shelley Horan, said she was not objecting to the case being adjourned for a month.
Following two hearings during the summer, the three-member tribunal found Mr O’Callaghan guilty of four counts of professional misconduct over his handling of the sale of lands in Co Mayo in 2007.
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Its decision came in response to a complaint initiated in 2010 by Nirvanna Property Holdings Limited, a company of businessman Tom Fleming.
Mr Fleming claimed Nirvanna never received €250,000 it was owed 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 complaint, finding 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”.
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In making its strike-off recommendation, the tribunal said it had regard to other findings of misconduct previously made by it against Mr O’Callaghan.
The solicitor has been suspended 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. Concerns raised in an independent solicitor’s report included that he withdrew substantial fees from the estate of a bereaved child.
A suspension was imposed pending a tribunal hearing of the society’s application for an inquiry into matters arising from its investigation. That application has yet to be heard.
Mr O’Callaghan’s case asking the court to rescind the tribunal’s order and report on the Nirvanna complaint is not his first attempt at having the matter thrown out.
He previously unsuccessfully asked the High Court and Court of Appeal to block the tribunal’s hearing of his complaint. The tribunal also refused to accede to two requests by Mr O’Callaghan for the matter to be struck out.
His new case alleges he was not afforded a fair hearing and that he should have been permitted to cross-examine Mr Fleming. He alleges the SDT conducted itself in a manner that would give rise to a reasonable apprehension of bias and predetermination of the issues and that it failed to vindicate the presumption of innocence.
He claims there were various breaches of his rights under the Constitution, European Convention on Human Rights and the European Union Charter of Fundamental Rights.
The tribunal cannot implement its own sanction recommendation, which must go before the High Court for final decision.
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