Suspended solicitor seeks to halt inquiry into claims of professional misconduct

A suspended Co Roscommon solicitor, Declan O’Callaghan, has initiated High Court proceedings aimed at prohibiting an inquiry by the Solicitors Disciplinary Tribunal (SDT) into a company’s allegations of professional misconduct against him.

The proceedings by Mr O’Callaghan, Sligo Road, Ballaghaderreen, arise from the conduct of the inquiry when it came before the tribunal on February 11th.

On Thursday, Mr Justice Michael Twomey granted Michael Mullooly, for Mr O’Callaghan, leave to bring judicial review proceedings seeking orders restraining the tribunal continuing with the inquiry into allegations made by Nirvanna Property Holdings Ltd and quashing the tribunal’s decision to adjourn that inquiry to late May.

The judge refused to grant, at this stage, counsel’s ex-parte (one side only represented) application for an interim injunction restraining the tribunal proceeding with the inquiry in late May. The inquiry concerns allegations by Nirvanna Property Holdings Ltd.

Affidavit

In an affidavit grounding the application for judicial review, Mr O’Callaghan, who denies the company’s allegations against him, said the inquiry came before the tribunal on February 11th and he attended and was represented.

He said the chairman had opened proceedings, taken representations and then spoken directly to Tom Fleming of the Nirvanna company, telling Mr Fleming he was entitled to open the case and to call witnesses. Counsel for Mr O’Callaghan queried whether Mr Fleming could represent his company in proceedings before the tribunal and referred to various legal authorities to the effect a limited company cannot be represented in proceedings by a director.

Mr O’Callaghan said Mr Fleming had said he had been trying to get a solicitor for 10 years but had been “blocked” by the Law Society. Mr Fleming sought a short recess after which he looked for an adjournment.

The tribunal had said it was satisfied Mr Fleming could not represent the company and indicated it would put the matter back if Mr Fleming wished to see if he could get a solicitor. Mr O’Callaghan said Mr Fleming applied for that adjournment and Mr O’Callaghan’s counsel objected to an adjournment on the basis the tribunal had found Mr Fleming could not represent his company.

Mr O’Callaghan said the tribunal then considered the matter and made three findings. These were (1) the matter had not “commenced” because Mr O’Callaghan’s side had raised a preliminary matter, (2) it had power under its rules to postpone any further steps in the matter and (3) was obliged to hold an inquiry to consider the allegations of misconduct made against Mr O’Callaghan.

Mr O’Callaghan said his position was the inquiry had commenced and Mr Fleming had been asked to make an opening submission and to call evidence. While the tribunal can adjourn or postpone an inquiry when an application is made to the tribunal, the tribunal had found Mr Fleming did not have standing to represent the company so there was no “bona fide” application for an adjournment.

The tribunal policy on adjournments provides there should be no adjournments except in exceptional circumstances and there were no exceptional circumstances in this case, he said. He said the tribunal’s third reason for adjourning was because it felt obliged to deal with each allegation of misconduct and the chairman “for some reason” felt it could not do so. The tribunal could and should have considered the evidence before it, including forms completed on behalf of the company and affidavits, including from Mr O’Callaghan rebutting the allegations, he said.

The decision to adjourn/postpone was made without, or in excess of, jurisdiction and breached his rights to a fair hearing and fair procedures, he said.

The High Court suspended Mr O’Callaghan’s practising certificate in July 2018. Last November, 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. Separately from the Nirvanna matter, Mr O’Callaghan is also subject of another inquiry before the SDT which has yet to be heard.