Suspended solicitor found guilty of professional misconduct over handling of land sale

Suspended solicitor Declan O’Callaghan has been found guilty of four counts of professional misconduct over his handling of a transaction concerning the 2007 sale of lands in Co Mayo.

The Solicitors Disciplinary Tribunal (SDT) will hear submissions next Tuesday as to what sanction to impose on Mr O’Callaghan.

Tom Fleming, a businessman whose company Nirvana Property Holdings Ltd brought the complaint against Mr O’Callaghan, claimed Nirvana was to receive €250,000 for the development land at Aughadiffin, Kilkelly, from businessman Fred Preston, since deceased. Although the land was transferred in April 2007, no money was ever received by Nirvana, he told the tribunal.

At the outset of the SDT hearing on Thursday, Ruadhán Ó Ciaráin, instructed by Langsch and Cunnane Solicitors LLP, for Nirvana, said the case against Mr O’Callaghan is “simple” but was being “masqueraded” by the solicitor as a “complex” one.

Nirvana’s evidence, including signed and witnessed documents put before the tribunal, was “considerably superior” to that advanced by Mr O’Callaghan, who had failed to call several people, including accountants and solicitors, whom he referred to in opposing Nirvana’s claims, counsel said.

Mr O’Callaghan, in his evidence, said it was a “blatant lie” that €250,000 was owed to Nirvana and he disputed that the transaction was for a “sale” of the lands. His case was there was an arrangement between Mr Fleming and Mr Preston concerning the lands in the context of raising funds for a company, Western Concrete Ltd, and that he acted at all material times for WCL.

After a daylong hearing on Thursday, a three member SDT, on foot of evidence, including from Mr Fleming, found Mr O’Callaghan guilty of professional misconduct on four counts of breach of duty in relation to the April 2007 lands transfer.

Mr O’Callaghan purported to act for both vendor and purchaser in a transaction where there was “a clear conflict of interest”, it held.

Its second finding was that he had failed to ensure the consideration for the lands had passed to the vendor company before the title passed to the purchaser.

The third count of professional misconduct was based on the SDT finding that Mr O’Callaghan provided inadequate professional services and was in breach of his duty of care to the company.

Its fourth finding was that he continues to act for the purchaser in proceedings against him for recovery of the consideration.

Mr O’Callaghan, whose now defunct firm Kilrane O’Callaghan & Co was based in Ballaghaderreen, Co Roscommon, has been suspended from acting as a solicitor since 2018.

The suspension was imposed due to concerns about other matters raised in an independent solicitor’s report, including that he withdrew substantial fees from the estate of a bereaved child.

After the SDT gave its decision on Thursday, the tribunal registrar outlined the previous disciplinary history concerning Mr O’Callaghan.

There were two instances of misconduct previously made by the SDT against Mr O’Callaghan, he said.

Mr O’Callaghan was found guilty of misconduct in 1990 related to 26 allegations and the High Court had directed him to practice for three years under the supervision of a solicitor of not less than 10 years’ standing, he said.

The second previous matter concerned a 2019 SDT finding that Mr O’Callaghan was guilty of misconduct in that he had unlawfully retained client money in his client account due to be paid to another law firm for litigation costs and expenses from the estate of a named client; and failed to remit costs and outlays to a law firm arising out of litigation between their client and a client of Mr O’Callaghan’s, resulting in court proceedings being issued against the complainant’s client. The SDT further found he failed to explain why were money was retained by him for about four years and not remitted to a firm in discharge of costs.

Arising from that, the SDT had recommended that he be censured, pay €10,000 to the Law Society compensation fund and pay €7,500 as a contribution to the society’s costs. The registrar said he had been informed there was no record of that sum having been paid.