High Court partially allows solicitor appeal, upholds one misconduct charge while dismissing three others on conflict of interest grounds.

THE HIGH COURT

[Record No. H.SA.2024/115]

[2025] IEHC 693

IN THE MATTER OF THE SOLICITORS ACTS 1954 – 2008

AND

IN THE MATTER OF DECLAN O’CALLAGHAN, A SOLICITOR FORMERLY

PRACTISING AS PRINCIPAL OF KILRANE O’CALLAGHAN & CO.

SOLICITORS, BALLAGHADERREEN, CO. ROSCOMMON

AND

IN THE MATTER OF AN APPLICATION BY NIRVANNA PROPERTY HOLDINGS

LIMITED TO THE SOLICITORS DISCIPLINARY TRIBUNAL

BETWEEN

DECLAN O’CALLAGHAN

APPLICANT/APPELLANT

AND

NIRVANNA PROPERTY HOLDINGS LIMITED

RESPONDENT

AND

LAW SOCIETY OF IRELAND

NOTICE PARTY

Approved Judgment of Mr. Justice Micheál O’Higgins delivered on the 14th November 2025

Introduction

1. The applicant/appellant (“Mr. O’Callaghan”) is a solicitor facing disciplinary charges of professional misconduct. In June 2024, the misconduct proceedings came on for hearing before the Solicitors Disciplinary Tribunal (“SDT”). The proceedings were prosecuted by the respondent company (“Nirvanna”), and not by the Law Society. The tribunal found in respect of each of the four allegations that Mr. O’Callaghan was guilty of professional misconduct. Following a sanctions hearing in July 2024, the tribunal recommended that Mr. O’Callaghan's name be struck off the Roll of Solicitors and directed the Law Society to bring the report of the tribunal before the High Court.

2. This is my judgment on Mr. O’Callaghan's appeal under s. 7 of the Solicitors (Amendment) Act 1960 (as amended) (the “1960 Act”) from the decision of the tribunal. The matter proceeded before me by way of a full rehearing with oral evidence and crossexamination.

Background history

3. The case has quite a protracted procedural history. I will borrow from the factual background set out in the judgment of Barniville P. ([2025] IEHC 312) which dealt with Mr. O’Callaghan's preliminary submission that this appeal should involve something less than a full rehearing.

4. In May 2010, Nirvanna made a complaint against Mr. O’Callaghan to the SDT and applied under s. 7(1) of the 1960 Act for an inquiry into his conduct on the grounds of alleged misconduct in connection with a property transaction concerning lands in County Mayo (the “Mayo lands”) in 2006/2007. In February 2011, the tribunal decided that there was a prima facie case of misconduct on the part of Mr. O’Callaghan and directed an inquiry into four grounds of alleged misconduct against him. Those grounds were that Mr. O’Callaghan:

(a) purported to act for both the vendor and the purchaser in a transaction where there was a clear conflict of interest;

(b) failed to ensure that the consideration had passed to the vendor company before title to the property passed to the purchaser;

(c) provided inadequate professional services and was in breach of his duty of care to Nirvanna; and

(d) continued to act for the purchaser in proceedings against him for recovery of the relevant consideration.

5. The proceedings before the tribunal were long and drawn out. There was a backwards and forwards of several affidavits between Mr. O’Callaghan and Tom Fleming on behalf of Nirvanna. Mr. O’Callaghan denied, and continues to deny, the allegations of misconduct made against him.

6. The inquiry was initially listed for hearing by the tribunal in May 2011, but was adjourned to allow High Court proceedings in relation to the same transaction to proceed, in circumstances where the existence of those proceedings allegedly prevented a witness from attending and giving evidence at the inquiry.

7. Various further dates for the inquiry were fixed in the period 2018 to 2019, but for one reason or another, it did not proceed. The hearing was ultimately listed to proceed on 11th February 2020. Mr. O’Callaghan was represented by a solicitor and counsel on that day. However, Nirvanna was purportedly represented by one of its directors, Mr. Fleming. At the outset of the hearing, an objection was made on behalf of Mr. O’Callaghan to Mr. Fleming representing Nirvanna on the basis that he was not a lawyer. The tribunal accepted that objection and acceded to an application by Mr. Fleming to adjourn the hearing. The hearing was initially adjourned until April 2020, however, due to the COVID-19 pandemic, it was deferred further.

8. On the 30th April 2020, Mr. O’Callaghan sought and was granted leave to seek judicial review of the tribunal’s decision to adjourn the hearing, as well as the tribunal’s jurisdiction to consider Nirvanna's complaint in circumstances where it was suggested that Mr. Fleming and his son may not have had the authority of Nirvanna to make the complaint on its behalf. In his ruling ([2022] IEHC 13) Barr J. refused the relief sought. Mr. O’Callaghan appealed this ruling to the Court of Appeal. This appeal was unsuccessful, and Butler J. ([2023] IECA 3) rejected all of Mr. O’Callaghan’s claims. The court held that the issue as to the Flemings’ authority to make the complaint on behalf of Nirvanna was a matter that could be determined by the tribunal in the course of the inquiry itself.

9. The inquiry before the tribunal finally proceeded on 13th June 2024. Mr. Fleming gave evidence and was cross-examined by counsel for Mr. O’Callaghan. Mr. O’Callaghan contended that this cross-examination was unfairly constrained and curtailed by the tribunal. Mr. O’Callaghan also gave evidence that day and was cross-examined by counsel for Nirvanna. Ultimately, the tribunal found in respect of each of the four allegations that Mr. O’Callaghan was guilty of professional misconduct. Very brief reasons were provided in respect of the tribunal’s findings.

10. The tribunal sat again on the 2nd July 2024 to hear submissions in relation to sanction. It decided that it would not be appropriate to make any order imposing a sanction under s. 7(9) of the 1960 Act, but instead directed the Law Society to bring the report of the tribunal before the High Court. In accordance with section 7(3)(c)(iv)(I) and (II) the tribunal gave its recommendations as to the sanction which, in its opinion, should be imposed. It recommended that Mr. O’Callaghan’s name be struck off the Roll of Solicitors and that there should be an order for costs made against him.

11. The Law Society’s motion bringing the tribunal’s report before the High Court pursuant to s. 7(3) of the 1960 Act was returnable before the President on 17th February 2025. It was agreed that the Law Society’s motion would be held over pending the determination of Mr. O’Callaghan's appeal from the SDT, as required by O. 53B, r. 6(a)(i) RSC.

12. An important issue arose in the context of Mr. O’Callaghan’s appeal relating to the form that it should take. Mr. O’Callaghan wanted the appeal to proceed on the basis of the transcript of the hearing before the SDT, and on the evidence heard before the tribunal in order to advance the grounds set out in his appeal motion. He did not want a full rehearing with witnesses being called and cross-examined. However, Nirvanna contended that a full rehearing was necessary to ensure finality in circumstances where the complaint dated back to 2010 and concerned alleged misconduct in 2006/2007. The Law Society adopted a neutral position on the issue of the precise nature and scope of the appeal and provided written submissions to assist the President in determining the issue.

13. At the conclusion of the hearing before the President on 22nd May 2025, the court held that it was not open to Mr. O’Callaghan to proceed on the basis that he proposed, and that the appeal should proceed as a full rehearing as provided for in O. 53B, r. 9(h)(I) RSC.

Evidence heard in Mr. O’Callaghan’s substantive appeal

14. I heard Mr. O’Callaghan’s appeal over two days on the 23rd and 24th of July 2025. Both sides were represented by solicitors and counsel. Mr. Fleming, director of Nirvanna, was the sole witness for the respondent. Three witnesses were called to give evidence on behalf of Mr. O’Callaghan: Declan O'Connor, a solicitor based in Navan, County Meath; the appellant Mr. O’Callaghan himself; and Niamh Creighton who worked as a solicitor in Mr. O’Callaghan’s office, Kilrane O’Callaghan & Co. Solicitors, during the period 2006 to 2010. I will review aspects of the evidence in due course.

15. The parties were informed that the court intended to deliver judgment on 3rd November 2025. On that date, prior to delivery of the court’s judgment, counsel for the Law Society sought an opportunity to make submissions on a discrete legal issue relating to the correct test to be applied for “professional misconduct”. It was indicated that this was necessary in view of an error in paras. 85 and 86 of the appellant’s written submissions which misstated the legal test for “professional misconduct” and/or failed to set out the correct test in a complete fashion. While acknowledging that the submission was very late, coming as it did on the very morning that the court was intending to deliver judgment, counsel for the Law Society urged that the issue was of sufficient importance to warrant the legal test being clarified. It was indicated that the Society had only belatedly realised the error in the appellant’s written submissions. Counsel provided the court with an outline of the Society’s position on the issue and identified relevant caselaw.

16. Since counsel for the appellant was not present in court and had arranged for a colleague to stand in for him in his absence for the purpose of taking judgment, I decided to adjourn the matter to 10th November 2025 so that the parties would have a further opportunity for submissions, with all counsel present. Subsequently, on the latter date, the court heard further submissions on behalf of the Law Society, the appellant and the respondent. I will come back to the question as to the correct test for “professional misconduct” later in this judgment.

Preliminary objection - the respondent’s authority to make the complaint

17. Before I address the substance of the issues between the parties, I wish to deal with an objection made by the appellant concerning whether the SDT had jurisdiction to entertain the respondent’s complaint. In my view, this objection lacks any substance and has been comprehensively addressed in the respondent’s written submissions.

18. The argument that the appellant makes under this heading was substantially answered already by Barr J. in the High Court (O’C v. The Solicitors Disciplinary Tribunal [2022] IEHC 13) and by Butler J. on appeal in O’Callaghan v. The Solicitors Disciplinary Tribunal [2023] IECA 3. In my view, the respondent is correct to rely on paras. 36, 40, 41 and 42 of Butler J.’s ruling as being a full answer to the appellant’s jurisdictional objection. Butler J. concluded that there was no substance to the appellant’s complaints under this heading. The appellant wasn’t contending that there was an actual lack of authority to make the complaint, merely that the respondent’s authority was not properly evidenced in the documents before the tribunal. It was also significant that the point had not been raised before the tribunal, and therefore the company never had an opportunity to address the issue. Butler J. stated at para.

42 that the material in the appellant’s Form DT3 was sufficient to allow the tribunal to be satisfied in a general sense that the application was properly made. That information identified Tom and Sean Fleming as owning two thirds of the shares in, and as being the secretary and a director respectively of, the respondent company.

19. Separately, I agree with the respondent’s submission that, insofar as it is required at all, the respondent has adduced sufficient evidence to show there was authorisation to bring the complaint. The most recent board resolution approving the complaint against the appellant was dated 13th February 2024, some three months before the SDT Inquiry. This board resolution was proved by Mr. Fleming and introduced into evidence before me during the hearing of the appeal (transcript day 2, pg. 10, lines 14 to 20). In all the circumstances, I find there is no substance to the appellant’s preliminary objection. I will now put in context the factual dispute between the parties.

Context of the factual dispute between the parties

20. I will do this by reference to the affidavits already sworn by the parties which help to identify the central areas of dispute. In his replying affidavit of 18th January 2025, Tom Fleming avers at para. 3 as follows: “Nirvanna’s complaint is a very simple one: on 20 December 2006 Nirvanna entered into a Deed of Transfer to convey certain land in Co. Mayo to Mr. Frederick Preston for consideration of €250,000.-. The land was transferred; however, Nirvanna never received any payment.” Mr. Fleming exhibited the deed of transfer to his affidavit, and he pointed out that the deed was witnessed and signed by Ms. Creighton.

21. An examination of the deed of transfer dated 20th December 2006 indicates that in exchange for consideration of €250,000, Nirvanna, the registered owner, did transfer the Mayo lands to Frederick Preston, as purchaser. The deed of transfer was witnessed and signed by Ms. Creighton. The document indicates on its face that receipt of the €250,000 “is hereby acknowledged”.

22. On the 4th April 2007, the conveyance was registered on the relevant folio with Mr. Preston listed as full owner. Mr. Fleming's affidavit at para. 9 avers that, in light of Nirvanna not receiving any payment on foot of the conveyance of the property, Nirvanna made a complaint to the SDT that Mr. O’Callaghan had breached his obligations as a solicitor visà - vis Nirvanna in three ways:

(a) a failure to have the consideration on account to pay Nirvanna before effecting the transfer of the property;

(b) a failure to avoid a conflict of interest by acting for both the vendor and the purchaser; and

(c) a failure to advise the shareholders of Nirvanna separately in relation to the conveyance and/or to advise them to obtain their own independent legal advice in relation to it.

23. At para. 10, Mr. Fleming avers that, in an attempt to distract the court from the incontrovertibility of the evidence, Mr. O’Callaghan has created “a deeply convoluted morass of fabrications and half-truths”. In a nutshell, Mr. O’Callaghan's defence is that Mr. Fleming agreed that a company called Western Concrete Limited (“Western Concrete”) would acquire the shares in Nirvanna so that Bank of Ireland would lend funds to Western Concrete, and in exchange for this agreement, Mr. Fleming would obtain shares in Western Concrete. According to Mr. O’Callaghan's version of events, as of the date of the deed of transfer, Western Concrete was a joint venture between Mr. Preston and Mr. Fleming. Mr. O’Callaghan's defence was that Mr. Fleming entered into the deed of transfer in furtherance of that joint venture.

24. Mr. Fleming avers at para. 12 that Mr. O’Callaghan’s narrative is entirely untrue. It overlooks the fact that the property was sold to Mr. Preston, and not Western Concrete. Mr. Fleming then sets out a chronology of events which, as far as he is concerned, proves his version of events and discredits Mr. O’Callaghan's.

25. Mr. Preston was a builder and developer who occasionally met Mr. Fleming in their local pub. Mr. Fleming avers that Mr. Preston was very interested in setting up a concrete business because he was developing sites and finding it difficult to obtain concrete. To that end, the two gentlemen decided to start a concrete business, Western Concrete. The company was incorporated on 15th March 2004. It consisted of two ordinary shares with one held by Mr. Fleming and by Mr. Preston respectively, and they were the only directors of the company.

26. Mr. Fleming says that, although Western Concrete was incorporated, it never really traded. He exhibits the accounts of the company which he says supports the contention that the company simply did not trade.

27. At para. 26, he says that in or around late 2005, he decided he did not want to go into partnership with the company anymore and told his accountant to take his name out of Western Concrete. Mr. Fleming says he told Mr. O’Callaghan that he was no longer having anything to do with Western Concrete. On 12th December 2005, his directorship was terminated, and Mr. Preston's wife was appointed as a director of the company.

28. At para. 27, Mr. Fleming states that, in his view, his instruction to his accountants to take his name out of Western Concrete would completely terminate any connection between himself and the company. He also thought that, along with termination of his directorship, his single share in Western Concrete would have been “gotten rid of too”.

29. Mr. Fleming says that this oversight, whereby he continued to unknowingly hold one share in Western Concrete, is the one true fact upon which Mr. Callaghan has “opportunistically constructed his entire narrative of lies”. He says it defies credibility that, in the context of this alleged joint venture of Western Concrete, he would relinquish all control over the decisions and running of Western Concrete by terminating his directorship of the company, if in fact it was actually a joint venture as Mr. O’Callaghan insists.

30. At para. 31, he says that, entirely unbeknownst to him and without his involvement or knowledge whatsoever, Bank of Ireland sent a letter to Mr. Preston enclosing a loan offer dated the 23rd March 2006, making available to Western Concrete the sum of €400,000. He says that he only learned of the existence of the March 2006 loan offer when Mr. O’Callaghan exhibited these documents to his replying affidavits in July 2010. The loan offer was addressed to Mr. Preston, Mr. Preston’s wife, and Western Concrete. It was never sent to Nirvanna or to Mr. Fleming.

31. Moving on then to the period May 2006, Mr. Fleming says that during this time he continued with his groundworks business. From time to time, he worked for Mr. Preston, who was a builder and developer, and he says that Mr. Preston owed him some money for the work concerned. In around mid-2006, he says he attended a meeting at Mr. O’Callaghan's office at which he believes Mr. Preston was present. He says he is unable to remember the precise reason for this particular meeting, but on account of the work he had been doing for Mr. Preston, it was not uncommon to have a meeting at Mr. O’Callaghan's office.

32. He says at para. 41 that it was in the context of this meeting, and monies owed to him by Mr. Preston for works carried out, that Mr. O’Callaghan proposed that Western Concrete should acquire the shares in Nirvanna, in exchange for which Mr. Fleming would receive shares in Western Concrete. He says that he did not explore the deal in any detail at all and refused outright any such deal of that nature. He claims he told Mr. O’Callaghan and Mr. Preston at this meeting that he was not interested.

33. Mr. Fleming says he now realises that Mr. Preston required him to enter into this proposed deal because that was the only way by which Mr. Preston could satisfy the additional security requirements required by Bank of Ireland under the March 2006 loan offer. These requirements consisted of a specific charge over the property.

34. At para. 43, he says that in or around November 2006, Mr. O’Callaghan called him to attend his office. Mr. O’Callaghan raised the topic of Nirvanna selling the property to Mr. Preston and enquired whether Mr. Fleming would be open to that. Mr. Fleming said that he might sell it if the price was good. It was agreed that a valuation would be prepared. A number of days later, he says that Mr. O’Callaghan called him back into the office because the valuation had come in, on the basis of which Nirvanna was offered €250,000 for the property. Mr. Fleming said that he would speak to his son and daughter who were coshareholders and directors in Nirvanna, and that he would get back to them. His children agreed to the sale as they were happy with the price of €250,000 and that they would buy another plot of land with the proceeds of sale. Mr. Fleming says he informed Mr. O’Callaghan that Nirvanna would sell the property, and Mr. O’Callaghan said he would prepare the paperwork.

35. At para. 45, Mr. Fleming says that shortly after this he received a call from Ms. Creighton who advised him that, because Mr. O’Callaghan's firm was acting for the purchaser in the conveyance, he ought to obtain separate legal representation for Nirvanna as the vendors. Mr. Fleming avers that he was going to do so, but that shortly thereafter he received a call from Mr. O’Callaghan informing him that there was no need for separate representation in relation to the conveyance and that obtaining it would only slow the conveyance up (I pause to note here that this detail, like much of Mr. Fleming’s account, is fully contested by Mr. O’Callaghan).

36. On 20th December 2006, Mr. Fleming and his daughter attended at the offices of Mr. O’Callaghan to complete the paperwork, and they executed the deed of transfer and the shareholders resolution.

37. Mr. Fleming avers that, entirely without his knowledge, in January 2007 Bank of Ireland provided a separate new loan offer to Western Concrete for €400,000. Neither he nor Nirvanna ever received or saw this loan offer at the time, which he says was procured by Mr. O’Callaghan and Mr. Preston without his knowledge.

38. Mr. Fleming says that it is manifestly obvious from the above chronology of events that there was a conflict between Nirvanna’s interests as vendor of the property, and Mr. Preston's interests as purchaser. He says Nirvanna should have been advised to obtain separate legal representation in relation to the transfer and he and his co-shareholders, i.e. his children, should have been advised to obtain independent legal advice in relation to the transaction.

39. Turning to events from January 2007 onwards, Mr. Fleming avers that the fact that Nirvanna had received no payment on foot of the deed of transfer was a source of enormous frustration for him. As time moved on with no payment forthcoming, his relationships with Mr. Preston and Mr. O’Callaghan began to fray. By early to mid-2008 when payment was still not forthcoming, he says that Mr. O’Callaghan advised him to go to Kieran Madigan, a solicitor based in Castlerea, County Roscommon to commence proceedings against Mr. Preston. He says that to the best of his recollection, he made an appointment with Mr. Madigan’s secretary, however he never kept that appointment.

40. The balance of the affidavit deals with the role played by other solicitors and advisers whom Mr. Fleming says he approached for help. It is not necessary at this juncture to go into those details.

Summary of affidavits sworn by Mr. O’Callaghan

41. I have reviewed the contents of Mr. O’Callaghan’s affidavits sworn for the purpose of the hearing before the SDT, and his affidavit grounding this appeal. In the interests of brevity, I will refer only to his affidavit sworn on 18th December 2024, grounding his amended notice of motion dated 18th December 2024. At para. 6, he reprises his version as to the correct context of the 2006 transaction. He says that the transfer of the Mayo lands was for the purpose of satisfying the security requirements of Bank of Ireland which was intended to finance a joint business venture between Mr. Fleming and Mr. Preston. Mr. O’Callaghan says that there was never any question of a sum of €250,000 being paid for the lands. Instead, that was the valuation figure given to the lands which represented the contribution of Mr. Fleming and Nirvanna to the joint business venture, Western Concrete. He says that the SDT affidavits exhibited all relevant documentation surrounding the transaction and pointed out that, while the transaction was largely handled in his office, it was overseen by Ms. Creighton, who prepared the deed of transfer dated 20th December 2006 and witnessed the execution thereof by the parties. He does not attribute any blame to Ms. Creighton in relation to the handling of the transaction and accepts that he had overall responsibility for the firm.

42. Mr. O’Callaghan’s affidavits deny any wrongdoing on his part, and he continues to protest his innocence in relation to the allegations of professional misconduct. I will deal more fully with Mr. O’Callaghan’s defence to the allegations when I review the actual evidence heard before the court.

Legal framework

43. A fundamental theme emphasised throughout the case law on disciplinary proceedings is the importance of complete and absolute honesty on the part of a solicitor, both from the point of view of members of the public and those within the profession. In Law Society of Ireland v. Corrigan [2023] IEHC 389, Barniville P. carried out a review of the relevant case law in a sanctions appeal. The President referenced the decision of the Supreme Court in Carroll v. Law Society of Ireland [2016] 1 I.R. 676, where the court considered the judgment of Bingham M.R. in Bolton v. Law Society [1994] 1 W.L.R. 512. In that case, the Master of the Rolls said: “Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established…”

44. Bingham M.R. stated that while there may be a punitive element to strike off orders, they are primarily directed at two important purposes: the first is that the offender should not have the opportunity to repeat the offence; and the second such purpose, described by the Master of the Rolls as “the most fundamental of all” is: “to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.”

45. According to McKechnie J. in Carroll at paras. 71 - 73: “…one common strand permeates all levels of the profession … trust, integrity, probity and, in a nutshell, honesty … that common thread of honesty has no boundary and can never be stood down”. He went on to observe that where: “proven dishonesty is involved, with or without the oft associated features of misrepresentation, concealment and deceit, such misconduct will almost always feature at the highest level of the [disciplinary] scale … in such circumstances, the sanction of dismissal will be a front line consideration.”

46. On any view, the four allegations facing Mr. O’Callaghan in the present case are very serious indeed. Taken together, they allege basic dishonesty on his part. In short, it is alleged that he had responsibility for the conduct of a conveyancing transaction in which he acted for both the vendor and the purchaser, thereby giving rise to a clear conflict of interest. It is also alleged that he failed to ensure that the consideration for the transaction passed to the vendor company before title passed to the purchaser. Further, it is alleged that he provided inadequate professional services and breached his duty of care towards his client and continued to act for the purchaser of the lands in proceedings against the purchaser for recovery of the consideration, which was wrongfully never passed on to the client.

47. The important thing to remember is that, notwithstanding their undoubted seriousness, these are but allegations which will require to be proved. The court’s task is to “follow the evidence” and decide whether the allegations have been proved to the required standard.

Applicable standard of proof

48. The parties agree that the applicable standard of proof is the criminal standard of “proof beyond reasonable doubt”. Finnegan P. stated in Law Society v. Walker [2007] 3 I.R.

581 at para. 31 that: “As to standard of proof at an inquiry I have regard to the dicta in O’Laoire v. Medical Council (Unreported, Supreme Court, 25th July 1996 [the year cited is incorrect. It should be 1997]). The standard is the criminal standard of proof beyond reasonable doubt.”

49. In providing practical guidance on how the criminal standard of “beyond all reasonable doubt” should operate in a civil law disciplinary inquiry, O’Flaherty J. stated at pg. 9 of O’Laoire v. Medical Council the following:

“The essence of a disciplinary enquiry into alleged professional misconduct, such as concerned the Committee and the trial judge here, is to find out by clear evidence the pith and substance of the misdeed being investigated and decide whether the case has been established against the person…”

50. However, it should not be thought that because the governing standard of proof is the criminal standard, the rules and procedures appropriate to a criminal trial should equally apply to a professional disciplinary matter. This was made clear by Kearns P. in McManus v. Fitness to Practice Committee of the Medical Council [2012] IEHC 350.

51. In Kennedy v. Law Society (No. 3) [2002] 2 I.R. 458, the Supreme Court noted that although the circumstances in which the exclusionary rule could be applied were not confined to criminal law, the application of the rule outside of criminal law proceedings must necessarily be limited. Fennelly J. held that an element of deliberate and knowing misbehaviour must be shown before evidence should be excluded in a professional disciplinary context. The courts should be slow to adopt any mechanical exclusionary rule which hinders disciplinary tribunals from receiving and hearing probative evidence. A balance should be struck between the rights of individuals, and the professional bodies assigned the task of supervising a professional’s behaviour.

Evidence of the complainant, Tom Fleming

52. Tom Fleming was the sole witness called on behalf of the respondent. At the time of the hearing before me, he was about to turn 81 years of age. At the time of the events under discussion (March and December 2006) he would have been 62 years of age. Mr. Fleming left school at age 13 and has been involved in land clearance and building for most of his life. He has difficulty with reading, particularly legal or formal documents, is dyslexic and cannot spell very well. He is clearly a resilient man as he has overcome a number of health scares including cancer and heart surgery.

53. Overall, I found Mr. Fleming to be a reasonable witness in many respects who did his best to provide the court with accurate evidence. However, as he himself acknowledged, he was not good with dates and was reliant on prompting to jog his memory in relation to certain key events. He was also prepared to make some concessions in cross-examination which have assisted the court in coming to its conclusions.

54. I found Mr. Fleming to be a straightforward witness who feels dissatisfied with the legal service he was provided with. He acknowledged on more than one occasion that his recollection of certain events was not great. Overall, it is fair to say that the level of detail and clarity evident in his affidavits was not replicated in his oral evidence.

55. As the evidence played out, it emerged that the pivotal issue in the case was the correctness of Mr. O'Callaghan's claim that there was never a sale of the Mayo lands by a “vendor” to a “purchaser” for the sum of €250,000. Mr. O'Callaghan has maintained his defence throughout that the transfer was part of the joint-venture (Western Concrete) involving both gentlemen, and that the relevant security arrangements had been insisted upon by the Bank of Ireland. It was averred that the joint-venture company was set up to develop a ready-mix concrete business at a particular premises in County Roscommon which had previously been owned by Fleming Concrete Limited with which Mr. Fleming had been associated. That company had gone into receivership and Mr. Preston had purchased the concrete yard from the receiver. The yard was transferred to Western Concrete in April 2005.

New evidence not before the Solicitors Disciplinary Tribunal

56. The court has had the benefit of hearing evidence from two witnesses who did not give evidence before the SDT. The court heard from Ms. Creighton, the former salaried partner in Mr. O’Callaghan's practice who had drawn up the transfer deed the subject of the complaint, and Mr. Declan O'Connor, a solicitor who acted for Mr. Preston in an earlier matter. Both solicitors imparted important contextual information which provided the court with an important framework through which to consider the transaction the subject of the disciplinary charges.

Remaining gaps in the evidential picture

57. Despite the addition of these two important witnesses, there were several gaps in the evidence which made it quite difficult for the court to get to the bottom of the issues in the case. The following potentially relevant witnesses were either unavailable or were not called to give evidence: First, Mr. Frederick Preston himself, who died in January 2022.

58. Second, the accountancy firm advising Mr. Fleming and Nirvanna at the time of the deed of transfer. This was unfortunate because Mr. Fleming in his evidence suggested that, owing to an oversight on the part of the accountant concerned, his shareholding in Western Concrete had remained in place. I say “unfortunate” because a key issue that became apparent during the case was the correctness of Mr. Fleming’s assertion that, by the time the lands were transferred in December 2006, he had dissociated himself from the company.

59. Third, Mr. O’Callaghan did not call evidence from any representative of Bank of Ireland who, according to Mr. O’Callaghan and Ms. Creighton, insisted on the lands being transferred to Mr. Preston, rather than Western Concrete, if the loan to the alleged joint venture was to proceed, and who apparently objected to Mr. Fleming's name appearing on the security documentation.

60. Fourth, the respondent did not call evidence from any other member of the Fleming family, which meant that their case rested on the shoulders of Mr. Fleming alone, who was now in his eighties. Since the question as to whether it was ever envisaged that the €250,000 would be paid over became such a key issue, it is somewhat surprising that no other member of the Fleming family testified on this issue.

61. Of course, it is entirely a matter for the parties in litigation to decide whether to call evidence and what witnesses to call. The court recognises that there may be perfectly valid practical or logistical reasons why particular witnesses are not called or may be unavailable for a hearing. I should also emphasise that I am not for a moment criticising any potential witnesses for not giving evidence, because the court knows nothing of the circumstances in which they have not been called. However, it is fair to say that the absence of these potentially relevant parties did have a bearing on matters as it left certain notable gaps in the evidential picture.

Missing attendance of the meeting of 29th March 2006

62. On the subject of evidential gaps, I found it surprising that Mr. O'Callaghan did not produce, until day 2 of the hearing before me, what he indicates was the attendance of the meeting in his office of 29th March 2006 attended by Mr. Fleming and Mr. Preston. This was the pivotal meeting at which Mr. Fleming and Mr. Preston allegedly instructed Mr. O'Callaghan to proceed with the joint venture arrangements and draw up the security documentation with Bank of Ireland. Counsel for the respondent and Mr. Fleming objected to the late arrival of this purported attendance and queried why it had not been exhibited to Mr. O'Callaghan's earlier affidavits or provided at any point to the SDT.

63. It must be said I too have concerns about the document and about the overall unfairness of introducing it so late in the proceedings. It was indicated in submissions that Mr. O’Callaghan's current solicitors had managed, after an exhaustive search, to locate it on the evening of the first day of the hearing before me, apparently located somewhere within one of the files that had not been removed by the Law Society from Mr. O’Callaghan’s office. If it is the case that the document remained on one of the retained files, I am unclear why it was not located years ago and exhibited in one of the several affidavits filed by Mr. O’Callaghan over the years. The memorandum related to a blindingly relevant meeting between Mr. O'Callaghan, Mr. Preston and Mr. Fleming at the key point when the disputed instructions as to the joint venture were allegedly given.

64. The suggestion that Mr. O'Callaghan was only prompted to search for so pivotal a document on foot of the enquiries made by the court is difficult to understand.

65. I should temper these concerns by pointing out, however, that in Mr. O'Callaghan's affidavit dated 21st July 2010 prepared for the SDT hearing, he refers to the meeting of 29th March 2006 in broadly similar terms to the contents of the memorandum which was belatedly produced.

66. In my view, the fairest way of dealing with the respondent’s objection is to consider whether it would be fair in the overall circumstances of the case to permit the document in question to be introduced at this late hour. I take the view that this is a document which ought to have been produced at a much earlier stage so that the respondent could examine it and, if necessary, take advice on its contents, long before the SDT hearing. Counsel for the respondent has made several submissions regarding the admissibility of various documents on fair procedure grounds. In view of the procedural unfairness that has arisen, I think the fairest way of dealing with matters is to disregard the attendance in question and assign it no weight in my deliberations.

67. I also propose to disregard the letter from Kieran Madigan & Co. dated 23rd May 2008 which was relied upon by Mr. O’Callaghan’s counsel in cross-examining Mr. Fleming. Whilst there is a fleeting reference to “loans advanced as to venture in which they engaged jointly”, the context in which this line was included in the letter is not clear. In the absence of the author or any memorandum relating to the taking of instructions by Mr. Madigan, I think it would be unfair to attach any weight to the document. Again, I want to make clear that that is not in any sense a criticism of Mr. Madigan who was not subpoenaed or asked to be present.

The approach of the court in resolving the core issues in dispute

68. It will be apparent from the above that there are fundamental conflicts on the evidence between Mr. Fleming's version of events and that of Mr. O'Callaghan. Since the conflicts are so stark, it is appropriate for the court to explore whether there are any objective pointers or nuggets that corroborate one account over the other. It is also appropriate that the court should consider any independent evidence from other witnesses and decide whether such evidence lends support to, or calls into question, the evidence of each protagonist.

69. Before reviewing the evidence of both Ms. Creighton and Mr. O’Connor, it is appropriate in the first instance to step back from the minutiae of the case and consider the core allegation levied against the appellant. The heart of the allegation against Mr. O’Callaghan is that he acted for both sides in the transaction and failed to pass on to the respondent the proceeds of the sale. In the first instance, it is surprising to the court that Mr. Fleming would have waited upwards of 15 to 18 months to chase up the money that he says was owed to him. The deed of transfer was executed in December 2006, and yet the first letter sent on his behalf seeking the payment of €250,000 was a letter from Mr. Jack Tracey, solicitor to Kilrane O'Callaghan & Co. dated 15th July 2008. Even if one were to consider the first demand for payment as being made by Mr. Madigan's letter of 23rd May 2008 seeking Mr. Fleming’s file from Kilrane O’Callaghan & Co., that letter was sent 15 months after the execution of the deed of transfer.

70. The court has also had the benefit of reading certain correspondence exchanged between the parties proximate to the matters under discussion, and quite extensive documentation relating to the loan of €400,000 from Bank of Ireland. The Kilrane O’Callaghan & Co. letter of 22nd July 2008 is reasonably important in that regard as it contains a detailed response to the letter sent by Mr. Tracey on 15th July. That letter, written by Ms. Creighton, rebutted the demand for payment and detailed the background to the transaction with regard to Mr. Fleming and Mr. Preston going into business together. While it was written a long time after the execution of the deed of transfer of December 2006, it was written approximately two years before the respondent’s complaint was made to the SDT.

Evidence of Niamh Creighton, solicitor

71. Ms. Creighton gave evidence that contradicted several aspects of Mr. Fleming’s account. Faced with this difficulty, counsel for the respondent submitted that the appellant and his witnesses should not be permitted to give evidence that was inconsistent with the plain terms of the deed of transfer. It was suggested that Ms. Creighton was tailoring her evidence to ‘save’ her former employer. Counsel invited the court to turn the proceedings into a disciplinary inquiry into Ms. Creighton’s actions. In my view, this was not appropriate. There was simply no basis for adopting such a course established in the evidence. Nor would it have been remotely fair on procedural grounds to turn the hearing into a disciplinary inquiry into the actions of someone who was not a party to the proceedings, and who was unrepresented before the court. Undoubtedly, counsel was in a difficult position, having to deal with unhelpful evidence that was plainly inconsistent with his client’s position, and which had not been flagged or foreshadowed in any affidavits from the witness. However, in my view that did not warrant accusing the witness of collusion or impugning her character without evidence. It was also inconsistent with the earlier submission that Ms. Creighton’s reputation had been unfairly criticised by Mr. O’Callaghan’s side before the tribunal.

72. Overall, I found Ms. Creighton's evidence to be truthful, detailed and crucially, supported to a significant degree by both the Bank of Ireland loan documentation and the correspondence with Mr. Fleming’s accountants. The loan documentation, in particular, constituted an important scaffold around which the witness’ evidence was based. Ms. Creighton was clearly upset by being dragged back into a controversy which related to events that occurred some 19 years ago when she was a solicitor in Mr. O'Callaghan's office. She stated in evidence that she had been dealing with Mr. Preston for some time. He had been passed on to her as a client by Mr. O'Callaghan. She put security documentation in place and sold several houses for Mr. Preston over the years. She was not at the meeting of 29th March 2006 when Mr. O’Callaghan says he met Mr. Fleming and Mr. Preston, and she did not see the attendance from that meeting already referenced. She explained to the court, and I accept, that Mr. Preston had indicated to her that he was going into business with Mr. Fleming and that her role was to make sure there was proper security in place for the loan that was being sought from Bank of Ireland. The initial proposal was that Western Concrete would acquire the shares of Nirvanna. That structure was not proceeded with, and instead they ultimately decided to pursue the security documentation as insisted upon by the bank. She stated there was no ambiguity in relation to the documents or what was to take place and that both gentlemen were in a hurry for the money to be released by the bank.

Respondent’s objection on hearsay grounds

73. During the hearing before me, counsel for the respondent submitted that the evidence from Ms. Creighton as to the bank’s position, and as to what was said to her by the respondent’s accountant, was hearsay and should not therefore be admissible in the absence of any representative from the bank or the accountancy firm giving evidence. I indicated that I would hear the evidence de bene esse and consider the hearsay objections “in the round”

with the balance of the evidence. Having done so, I am not disposed to uphold counsel’s objection on hearsay grounds. In my view, it would be artificial and unsafe not to allow Ms. Creighton to give an outline of the instructions she received, including the full context in which she prepared the loan documentation to meet the bank’s requirements. To bar her from explaining why the transaction was structured the way it was, and by artificially cutting away the roles of the bank and the respondent’s accountant, would render the court’s understanding of the transaction seriously incomplete.

74. Moreover, I am conscious that the death and unavailability of Mr. Preston means that the other main source for this evidence is no longer available to the court. Finally, in allowing the second-hand evidence in, I felt that the risk of such evidence being unreliable was ameliorated by the ample documentation before the court relating to the loan offer, the valuation of the lands by Sean Ganley Auctioneers and the correspondence with Nestor & Company Accountants.

75. While I found that the thrust of her evidence was compelling, there were aspects of Ms. Creighton’s evidence that were unclear. For instance, she was confused in her evidence about the amounts to be loaned by the bank, and she was also uncertain about precisely which account the loan monies were to be paid into. She erroneously thought that €250,000 (the sum mentioned in the deed) was the loan figure advanced, rather than €400,000 as confirmed in the correspondence. However, in my view nothing turned on this. These aspects of uncertainty did not take from the overall thrust of her evidence which essentially supported Mr. O’Callaghan’s account that it was never envisaged that the respondent would be paid €250,000 for the transfer of the lands. On the key issue as to the suggested joint venture, Ms. Creighton's evidence supported Mr. O'Callaghan's account as to Mr. Fleming being involved in the joint venture and being aware of the arrangements to obtain the loan monies from the bank.

76. Importantly, Ms. Creighton gave evidence as to her communications with Mr. Fleming's accountants who were also the accountants for Western Concrete. This was in the context of an initial proposal that Western Concrete would acquire the shares of Nirvanna in order to comply with the bank’s security requirements regarding the lands. I have already alluded to my ruling on the hearsay objection raised by counsel for the respondent.

77. There were also aspects of Mr. Fleming’s evidence that were consistent with the account put forward by Mr. O’Callaghan. Mr. Fleming accepts that he attended Mr. O’Callaghan’s office with Mr. Preston in “mid 2006”. In my view, one cannot safely rule out the possibility that this meeting was the 29th March 2006 meeting mentioned by Mr. O’Callaghan. Mr. Fleming also accepts that when he met with Ms. Creighton to go through the documents executing the deed of transfer on 20th December 2006, she read out the documents and explained their contents. In addition, Ms. Creighton said in evidence, and I accept, that in advance of the meeting of 20th December 2006 she had been told by Mr. Preston that he and Mr. Fleming were going to attend the office in relation to the transaction that she had been in contact with the bank about, because the money was ready to be released to Western Concrete. She stated that Mr. Fleming, Mr. Preston and Mr. Fleming's daughter, whom Ms. Creighton was previously acquainted with, attended to sign the deed. As far as Ms. Creighton was concerned, there was no ambiguity in relation to the documents or what was taking place.

78. When asked who her client was, Ms. Creighton indicated that firstly her client was Mr. Preston and that she was acting for Western Concrete, the joint venture. She said it was perfectly regular for a solicitor in her shoes to deal with a letter of offer from a bank. She viewed the whole transaction as a joint venture between Mr. Fleming and Mr. Preston.

79. Ms. Creighton stated, and I accept, that she did not say to Mr. Fleming that he should go to another solicitor to get independent advice. In cross-examination, she stated she did not have a separate conversation with Mr. Fleming on another day and that the only time she spoke to him was on the day he came into the office with Mr. Preston on 20th December 2006. I accept her recollection on this issue over that of Mr. Fleming, whose evidence on this issue was somewhat vague and uncertain. This finding necessarily impacts Mr. Fleming’s evidence that he was phoned by Mr. O’Callaghan and advised by him there was no need for him to go to obtain separate legal advice.

80. Finally, in answer to counsel for the respondent’s reasonable probing of the point, Ms. Creighton denied that there was any conflict of interest on the part of Kilrane O'Callaghan & Co. I should say that I do not agree with this position, and I will explain why at the end of my judgment.

Evidence of Declan O'Connor, solicitor

81. Mr. O'Connor was a solicitor in practice for upwards of 50 years and was based in Navan, County Meath. He stated, and I accept, that he did not know Mr. O'Callaghan and met him for the first time on the first day of the hearing before me. He was Mr. Preston’s solicitor in the purchase of a concrete yard some years earlier. In October 2004, he received draft contracts and supporting title documents from a solicitor in Cavan acting for Ray McDwyer, the receiver of Fleming Concrete Limited. The price was €65,000 and the purchaser was expressed to be Mr. Preston. He made contact with Mr. Preston and gave some preliminary advice. On 9th November 2004 he returned the executed contracts to the receiver’s solicitor in Cavan. Significantly, he told the court about the instructions he had been given by Mr. Preston. Mr. Preston advised him that the purchase of the yard was to be taken in the name of Western Concrete, a company co-founded by himself and Mr. Fleming. The conveyance concluded in April 2005. The vendor on the documentation was the receiver of Fleming Concrete Limited and the purchaser was Western Concrete.

82. Nearly a year had elapsed when in May 2006 Mr. Preston got back in touch with Mr. O’Connor as a matter of some urgency requesting him to send documentation relating to the purchase of the yard to Kilrane O'Callaghan Solicitors. His recollection is that Ms. Creighton was the solicitor dealing with the matter. Mr. O’Connor’s engagement with the file finished in August 2006 when he wrote to the solicitor for the receiver in an effort to assist Ms. Creighton with the title documents. Finally, Mr. O'Connor confirmed that at the stage of his dealings with Mr. Preston on that file in April 2005, both Mr. Preston and Mr. Fleming were associated with the venture. He said that he did not know Mr. Fleming. He also stated that in his dealings with Mr. Preston over the years he found him to be fair and honourable.

83. In my view, Mr. O'Connor's evidence, which I found to be reliable and clear, tends to call into question Mr. Fleming's recollection that he had “signed out” of Western Concrete in 2005. To Mr. Fleming's credit, he acknowledged at several points in cross-examination that he was not great with dates and was uncertain about certain background details.

Other independent pointers

84. The respondent’s case requires acceptance of the idea that the deed of transfer of December 2006 should effectively be viewed in isolation on its own terms. Indeed, the case was opened by counsel on the basis that there were three facts in the case which made the matter ‘open and shut’: the first was that Nirvanna entered into a deed for the transfer of the land for €250,000; the second was that the land did transfer; and the third was that Nirvanna never received €250,000 for the transfer. While I accept the points concerning the clarity and simplicity of the transfer deed, I think it would be an error to view the deed in isolation. Like any piece of evidence, it should be viewed in its full and proper context, within the overall framework of all other pieces of evidence in the case.

85. Turning to other pointers, counsel for the appellant made the valid point that there was no contract for sale or requisitions on title, as one might expect to see in a sale for valuable consideration. Importantly, no deposit was sought by Mr. Fleming for the sale of the lands, nor was one paid. Mr. Fleming was unable to account for this. I have already mentioned the absence of any demand for the monies for upwards of 18 months after the deed took effect. While it was relevant that the deed of transfer mentioned on its face that receipt of the monies was “hereby acknowledged”, that did not trump countervailing evidence to the effect that this recital was a pro-forma inclusion.

86. If the transfer deed is given effect to in isolation – which is effectively the respondent’s submission to the court – that would mean that the Fleming family and Nirvanna would effectively have contributed nothing to the loan arrangements being put in place for the alleged joint venture. While not dispositive of the case, I think that would be a surprising state of affairs.

87. Finally, the correspondence between representatives of Bank of Ireland and Ms. Creighton in the run up to the execution of the deed of transfer, and in the period thereafter, supports in a general and cumulative way Mr. O’Callaghan’s core position as to the existence of a joint venture between Mr. Fleming and Mr. Preston, and the likelihood that Mr. Fleming’s part in the joint venture endured beyond 2005. The court was provided with a letter from Brian Murphy of Bank of Ireland dated 23rd March 2006 enclosing an initial letter of offer. Under the heading “Additional Security Required”, the initial loan offer required a “Fixed & Floating Debenture incorporating a specific charge over [the Mayo lands] and a floating charge over the assets and undertakings in the name of Western Concrete Ltd” (emphasis added).

88. The court was also provided with correspondence passing between Ms. Creighton and the bank’s solicitor, Richard Black. In a letter to Mr. Black dated 19th July 2006, Ms.

Creighton enclosed the copy folio to the Mayo lands and noted that the registered owner was Nirvanna Property Holdings Limited. The letter noted that a “transfer of shares or a transfer of the property to Western Concrete Limited is being put in place at the moment”. A letter from Mr. Black dated 13th September 2006 noted that “with regard to the [Mayo lands], we note that negotiations are continuing in relation to the purchase of the Company which owns that property and that subsequent to that the property will be transferred into the Borrower’s name. You should revert to us once a binding agreement is in place in relation to the purchase of those shares and we can then consider further our security requirements”.

89. More significantly again, the facility letter from Bank of Ireland addressed to Mr. Preston of Western Concrete dated 5th January 2007 contains new security requirements. Under the heading “Additional Security Required”, the document refers to “First Legal Mortgage/ Charge over the [Mayo lands] … registered in the name of Mr. Freddie Preston” (emphasis added).

90. In my view, the accumulation of these documents corroborates the thrust of Ms. Creighton and Mr. O’Callaghan’s evidence that the bank’s security requirements changed over the period of March 2006 to January 2007, and ultimately required firstly, that the lands would be registered in Mr. Preston’s name and secondly, that Mr. Fleming’s name or company would not appear on the security documents.

91. Finally, there were two other aspects of Mr. Fleming’s account that, as far as the court was concerned, created uncertainty. Firstly, Mr. Fleming retained a 50% shareholding in Western Concrete long after December 2006 when the transfer deed was signed. Mr. O’Callaghan focussed on this fact to discredit Mr. Fleming’s claim that he had dissociated himself from the joint venture by the end of 2005. Mr. Fleming’s explanation was that his accountant made a mistake and simply omitted to rectify the share register at the time that he ended his directorship of the company. His view, that this was due to some mistake on the part of his own accountant, was not supported by any other evidence or by any letter or testimony from the accountant. The respondent bears the onus of proof on all factual issues and in my view the onus of proving that Mr. Fleming had fully dissociated from the company by the time of the transfer in December 2006 has not been discharged to the required criminal standard.

92. Secondly, the court was left in a state of uncertainty as to who precisely assisted Mr. Fleming in drafting the misconduct complaints submitted to the SDT in 2010. The complaints as submitted were written in quite formal legal language, and Mr. Fleming was unable to recall who helped him prepare the complaints, other than his son who was not a lawyer. In the heel of the hunt, while this may not have been a critical issue, it did create an air of uncertainty over the provenance of the disciplinary charges.

Conclusions on the evidence

93. In my view, all of these objective pointers make it very difficult for the court to conclude that the respondent has negatived, beyond a reasonable doubt, the “joint venture” position advanced by Mr. O'Callaghan in his defence to the misconduct allegations. Based upon the evidence of Ms. Creighton and the entirely independent evidence of Mr. O'Connor, I am not satisfied to conclude beyond a reasonable doubt that Mr. Fleming had ended all involvement with Western Concrete by 2005. Nor am I satisfied that the respondent has disproved to the required standard that Mr. O’Callaghan understood the transaction to be a joint venture.

94. While I have reservations about the extent to which Mr. Fleming and the respondent were kept abreast of developments with the bank, and have reservations about the adequacy of positive steps taken to protect Mr. Fleming’s interests in the suggested joint venture, I am not satisfied that the respondent has proved beyond a reasonable doubt that it was envisaged by the parties to the deed of transfer that €250,000 would be paid to the respondent.

95. Apart altogether from the evidence of the two solicitors, I am reinforced in this

conclusion by the absence of any discussion as to Mr. Preston paying a deposit for the sale of the lands, the absence of any other contractual documentation relating to the transfer, the absence of any efforts to chase up the alleged debt for upwards of 18 months, the significant corroboration provided by the documentation from the bank and the accountant, the undisputed evidence that the fees for the transaction were invoiced to Western Concrete, and the fact that no legal fees were ever charged to or paid by Mr. Fleming or Nirvanna at the time of the subject transaction.

Consequences of these findings on the four charges before the court

96. The main issue left for determination is the question as to the effect of the above findings on the four misconduct allegations before the court. I will start with allegations two and four, which I think are the most straight forward.

Second allegation – Mr. O’Callaghan failed to ensure that consideration passed

97. Allegation two alleges that Mr. O’Callaghan failed to ensure that the consideration had passed to the vendor company before title passed to the purchaser. In my view, this allegation has to fall on account of the respondent’s failure to prove beyond a reasonable doubt that it was envisaged by the parties that the consideration of €250,000 was to be paid to the respondent. A core element of this disciplinary charge has not been proven to the required standard and I therefore dismiss this charge.

Fourth allegation – Mr. O’Callaghan continued to act for the purchaser

98. Allegation four alleges that Mr. O’Callaghan continued to act for the purchaser in proceedings against him for the recovery of the consideration. This allegation relates to civil proceedings which Nirvanna and/or Mr. Fleming took against Mr. Preston seeking, as I understand it, to set aside the alleged sale of the lands for €250,000 mentioned in the deed of transfer. The court was told that these proceedings were not concluded prior to Mr. Preston’s death in January 2022. Mr. O’Callaghan stated that Mr. Preston initially consulted his practice in relation to the proceedings but ultimately was referred on to Mahon Sweeney Solicitors in Roscommon who delivered a defence. This evidence has not been contradicted. In the circumstances, it seems to me that this disciplinary charge must fail. That leaves allegations one and three which I will now consider.

Third allegation – provision of inadequate professional services

99. Allegation three alleges that Mr. O’Callaghan provided inadequate professional services and was in breach of his duty of care to the respondent company. This disciplinary charge is more difficult to determine. In my view, in three separate respects, the service provided to Mr. Fleming and the respondent company was questionable. Other than the readthrough of the documents on the morning they were signed, there is scant evidence that Mr. O’Callaghan, either at the March 2006 meeting or subsequently, took the trouble to warn Mr. Fleming, any of his children or the respondent company that the arrangements now being insisted upon by the bank required title to the lands to be transferred out of the ownership of Nirvanna and into the ownership of Mr. Preston personally, and not into the joint venture company in which Mr. Fleming retained a 50% shareholding.

100. Secondly, I have concerns about the extent to which Mr. O’Callaghan kept Mr. Fleming or his company Nirvanna aware of developments and negotiations with the bank, particularly when the security arrangements being insisted upon by the bank became more cumbersome. I found elements of Mr. Fleming’s evidence that he was not fully aware of developments with the bank to be persuasive. I note also that the March 2006 letter of offer and the January 2007 facility letter were addressed to Mr. Preston, and not to Mr. Fleming or his company. The court was not provided with copies of letters sent by Mr. O’Callaghan to Mr. Fleming or his company alerting them to the developments with the bank, or to the changed position visà -vis the security arrangements. The overall picture created by the correspondence suggests marked differences between how Mr. Preston and Mr. Fleming were being kept in the loop.

101. Thirdly, I have concerns regarding the alleged agreement between Mr. Fleming and Mr. Preston that the profits of Western Concrete would be shared on a 50/50 basis going forward. I am concerned by the apparent lack of evidence that Mr. O’Callaghan took steps to ensure that the legal documents to be drawn up sufficiently protected the interests of Mr. Fleming or Nirvanna with respect to this alleged agreement. In his evidence, Mr. O’Callaghan stated that he prepared draft ‘heads of agreement’ reflecting this arrangement and sent it to both gentlemen for their consideration, and copies of the relevant documentation were provided to the court. However, it is clear that title to the Mayo lands was allowed to transfer to Mr. Fleming, apparently at no cost, without Mr. Fleming or Nirvanna’s interests in the profit sharing being either protected or formalised in any documentation. To my mind, this all underscored the necessity for Mr. O’Callaghan to advise Mr. Fleming and the respondent of the need for separate legal advice. That brings me to the first disciplinary allegation, which I will now consider.

First allegation – conflict of interest

102. This disciplinary allegation alleges that Mr. O’Callaghan purported to act for both the vendor and the purchaser in a transaction where there was a clear conflict of interest. Mr.

O’Callaghan accepts, as he must, that he was the managing partner of the firm and that he had overall responsibility for the practice. Whatever way one looks at the issue, the reality was that by the year 2006, Mr. Fleming was a long-standing client of the practice. Mr. O’Callaghan had advised Mr. Fleming to establish the company, Nirvanna Property Holdings Limited, and Mr. O’Callaghan accepts that he acted for the company some years earlier in 2001. It follows that both Mr. Fleming and the respondent company were existing clients of the firm. Mr. Preston, a house builder and developer who had more substantial holdings, was also a pre-existing client of the office, as was his company, Preston Homes Limited. Western Concrete (the vehicle for the joint venture) was also clearly a client of the firm. None of this is controversial.

103. It appears clear from the terms of the deed of transfer and Ms. Creighton’s evidence as to who attended and signed on the day, that Mr. Fleming and his daughter were acting on behalf of the respondent company when executing the deed of transfer. I accept Mr. Fleming’s evidence that, as far as he was concerned, Mr. O’Callaghan was acting on his behalf in relation to the transaction.

104. Widening the lens for a moment, while Mr. Fleming had been involved as a director of different building companies over the years, he had difficulty reading, suffered from dyslexia, had left school at age 13 and had not had the benefit of a formal secondary education. Even though he was an experienced businessman, these matters to my mind placed him in a vulnerable position.

105. Stepping back from the transaction, even if one accepts as true the joint venture aspect, the security arrangements that had apparently been insisted upon by the bank meant that lands worth €250,000 were changing ownership out of Mr. Fleming’s company (the respondent) into the ownership of Mr. Preston personally in circumstances where (according to Mr. O’Callaghan’s version) no money was to change hands, and in circumstances where title was to pass without the respondent’s consideration for the transaction being separately protected or provided for in contemporaneous documentation.

106. In my view, either from the outset of the matter or, at the very latest, when it became clear to Mr. O’Callaghan that the bank’s security requirements had changed such that the bank was now insisting a) that neither Mr. Fleming’s name or that of his company should feature in the security documents, and b) that the lands should be transferred into Mr. Preston’s name, as opposed to the name of the joint venture company, there was a clear onus on Mr. O’Callaghan (who accepts he had knowledge of the transaction and overall responsibility for the firm) to alert Mr. Fleming to these developments and, at the very least, caution him and the respondent about the necessity to obtain their own legal advice on the matter. In my view, proceeding with the transfer of the lands in these circumstances gave rise to a clear conflict of interest. Mr. O’Callaghan accepts that he did not advise Mr. Fleming to obtain independent legal advice.

107. A solicitor who acts for both sides in a transaction does so at his peril. In my view it is self-evident, and was self-evident at the time of the events under discussion in 2006/2007, that Mr. O’Callaghan should have cautioned one or other of his clients to obtain independent legal advice. This was plainly a case where there was a risk of the interests of the respective clients colliding. This should have been evident to the appellant from the outset, and certainly no later than when it became apparent the bank’s requirements were changing. The appellant accepts that he became aware of the bank’s position at the material time, notwithstanding that another solicitor in the office was also dealing with the file. Each case involving a potential conflict of interest must be assessed on its own individual facts. On the facts of this case, it should have been abundantly clear to the appellant that different advice might need to be given to the respective clients about the transaction, particularly when the solicitor learned that the bank wanted the lands transferred out of the respondent’s ownership into Mr. Preston’s.

108. It is noteworthy that the appellant’s own submissions at para. 57 refer to the Solicitor’s Guide to Professional Conduct (4th edition) (2022). This document is issued by the Guidance & Ethics Committee of the Law Society and is available on its website. The following helpful commentary appears at chapter 3, pgs. 35-36: “A solicitor should not act in a matter, or any part of a matter, where there is a conflict of interest. A conflict of interest means a situation where a solicitor’s separate duty to act in the best interests of two or more clients in relation to the same or a related matter conflict. Conflicts of interest can arise between a solicitor and client(s) and between two or more clients. A solicitor is likely to have a conflict if either client could reasonably take exception to what the other client has asked the solicitor to do. Acting in a conflict-of-interest situation may involve a solicitor in a breach of the duty of undivided loyalty owed to each client, a breach of the duty to make full disclosure to each client in a matter, or a breach of the duty of confidentiality owed to each client. Where there may be a conflict of interest or a risk of a conflict of interest, it is a matter for the judgment of a solicitor in deciding whether to act, based on the professional duty owed by a solicitor to their client. It is not a matter for the judgement of the client(s). A solicitor must give careful thought to the matter to ensure that their professional obligations are discharged, that no conflict of interest arises, and/or that any identified risk is carefully considered and mitigated… If a solicitor, acting with ordinary care, would give different advice to different clients about the same matter, there is a conflict of interest, and the solicitor should not act for both clients. The solicitor owes a duty of care to each individual client, so must advise in accordance with that client’s best interests. Even where clients have a substantially common interest or where they are competing for the same objective, where the advice given to each party differs, a conflict may arise.” (emphasis added)

109. In my view, one needs to be careful about applying the standards of today to transactions that occurred years and possibly decades ago. Counsel for the appellant submitted, and I accept, that the obligations of solicitors with respect to acting for both sides in a transaction have undergone significant revision over the years. Counsel submitted that there was no regulation prohibiting a solicitor from acting for both sides in a land transaction such as this in 2006. In my view, while it may well be the case that no specific regulation prohibited a solicitor from acting for both sides in a property transaction at that time, that fact does not relieve the appellant on the facts of the present case of responsibility for ensuring the respondent was advised to obtain independent legal advice, and cautioning the respondent that the bank changed its security requirements which had specific implications for the respondent’s position. Since a solicitor owes a duty of care to each individual client, he/she must advise in accordance with each client’s best interests. On the facts of this case, the best interests of Nirvanna and Mr. Fleming required at a minimum that they should have been given independent legal advice.

110. A Guide to Professional Conduct of Solicitors in Ireland, 2nd Ed., (Law Society of Ireland, 2002), which was the applicable guide at the time of the events under discussion, contains a chapter dealing with conflict of interests between two clients. At para. 3.2 of the guide, solicitors are cautioned as a general principle against acting for the both vendor and purchaser in a transfer of property. Permitted exceptions to this general principle include where (para. 3.3 (c): “the vendor and the purchaser are established clients of the solicitor, and are both clearly advised at the outset by the solicitor of the desirability of separate independent representation, but each agrees that the solicitor should continue to act for both”. (emphasis added)

111. The fact that the transaction took place during the height of the Celtic Tiger property boom and that the parties may have been pressing the appellant to get the loan monies drawn down from the bank, is of course no defence to the conflict-of-interest allegation. The saga that unfolded after the Mayo lands were transferred, and after relations between the parties had soured, demonstrates precisely why solicitors should always be careful about the possibility of conflicts arising. I note from the appellant’s evidence that the respondent company issued professional negligence proceedings against him arising out of this transaction. The proceedings were amended to include Mr. Fleming and his children as coplaintiffs. Mr. O’Callaghan’s insurers took over carriage of the defence of the proceedings and they were listed for hearing in the High Court at the end of 2018. The court was told the proceedings were settled on the basis of the Flemings receiving the sum of €100,000 and a measured contribution towards costs. The settlement reached was on a “without prejudice to liability” basis.

112. While interesting in its own way, it seems to me that the court cannot draw any inferences from either the fact or details of the settlement that were canvassed in open court. The court does not know what factors prompted the parties to make the litigation decisions they made. The proceedings involved a claim for damages for alleged professional negligence, which are quite different to the professional disciplinary proceedings now before the court. The court does not have visibility on what evidence was available to the parties in that case, and as noted already, Mr. O’Callaghan’s insurers had carriage of the matter and instructed their own counsel. For all of these reasons, I propose to disregard altogether the evidence relating to the settlement.

113. Drawing together the findings that I have made, and since allegations two and four have fallen, I now must consider whether the two remaining disciplinary allegations (allegations one and three) have been proved to the required standard and whether each allegation can properly be said to amount to professional misconduct.

Determination of disciplinary allegations one and three

114. I do not accept that no duty was owed either to the respondent company or to Mr. Fleming. Both were existing clients of the firm whose interests were clearly affected by the proposed transaction. Moreover, “client” is defined in s. 2 of the Solicitors (Amendment) Act 1994 as including “the personal representative of a client and any person on whose behalf the person who gave instructions was acting in relation to any matter in which a solicitor or his firm had been instructed”.

115. Indeed, in answer to questions from the court, Mr. O’Callaghan (to his credit) accepted that the transaction impacted the interests of the shareholders of Nirvanna. He also accepted that, with the possibility that relations between the parties may later sour, these circumstances warranted the Flemings being cautioned as to the possibility that executing the transfer could prejudice their interests. He also accepted that the shareholders should have been advised separately, but queried whether this would have made any difference in circumstances where “Nirvanna was Tom Fleming’s vehicle”; “Tom Fleming was the beneficial owner of the property”; “his son and daughter… were willing participants in all of this … and they were happy to sign”; and “the push was on so much to do the deal in any way possible”. Mr. O’Callaghan concluded his evidence by acknowledging, “I’m not an expert in retrospect … I did the best I could is all I can say.”

116. Weighing everything up with respect to disciplinary allegation number three, and with a degree of hesitation, I have decided that in view of the findings I have made, in particular my finding that the respondent has not disproved the appellant’s joint venture defence, the state of the evidence leaves a doubt in my mind as to whether this disciplinary charge has been proved to the required standard. I am not prepared to make a finding on the evidence that Mr. O’Callaghan knowingly exploited a vulnerable client, or deliberately prejudiced the interests of the Flemings or that he failed to pass on monies that were due to the client.

117. In the circumstances, I am not satisfied to conclude that the respondent has proved beyond a reasonable doubt that Mr. O’Callaghan provided inadequate professional services or that he was in breach of his duty of care to the company.

118. That brings us back to the first disciplinary charge relating to the conflict of interest. For the reasons I have already outlined I am entirely satisfied that the Flemings and the respondent should have been advised to obtain independent legal advice. It is a matter of judgment for the solicitor, not the client, whether the solicitor should act on the client’s behalf. The appellant accepts that no such advice was given. It is a fair summary of the appellant’s evidence that, in retrospect, such advice should have been given but that the omission to do so should be viewed in its proper context, in circumstances where according to Mr. O’Callaghan, both men were anxious to get the deal done and get the money drawn down. In my view, with respect to the substance of the conflict-of-interest allegation, this goes to mitigation, not liability.

119. While the wording of a disciplinary charge can be important, in my view it is appropriate in the present case to focus on the substance of the disciplinary charge, and not so much on its technical wording. After all, this is a situation in which the court is exercising the professional disciplinary functions of the President of the High Court, exercising a supervisory role over solicitors in relation to the discharge of their professional duties. The substance of the first allegation is that the appellant acted in a transaction for different parties where there was a clear potential for conflict between the interests of those parties. I am satisfied to the criminal standard that that factual allegation has been made out on the evidence.

120. The fact that the disciplinary charge as worded refers to the solicitor acting “for both the vendor and the purchaser” in the subject transaction is really neither here nor there. The transfer had the legal effect of changing ownership of the lands. While I accept that it has not been proved that the transaction involved a sale of lands where money was to change hands, this is not in and of itself fatal to the charge since the core element as to the potential (and subsequently the actuality) for a conflict of interest to arise has been established beyond all reasonable doubt. I did not understand Mr. O’Callaghan’s evidence to seriously dispute this.

121. Even if the court is disposed to accept the defence position that there was a common purpose between Mr. Fleming and Mr. Preston, that does not, in and of itself, dispose of this allegation. In all the circumstances, I am satisfied that the facts of the first allegation have been proved beyond a reasonable doubt.

122. However, while the facts underpinning this allegation have been established, that still leaves the critical question as to whether the proven conduct constitutes “misconduct” within the meaning of the legislation. The current Solicitor’s Guide to Professional Conduct which I have already referenced reminds solicitors that under s. 50 of the Legal Services Regulation Act 2015, “misconduct” may be an act or omission where the act or omission consists of a breach of the Solicitors Acts 1954 to 2015 or any regulations made under those Acts. The impugned conduct here pre-dates the 2015 Act, and in circumstances where I have not been addressed on the relevance of that Act, I do not propose to consider it further.

123. Article 3 of the Solicitors (Professional Practice, Conduct and Discipline – Conveyancing Conflict of Interest) Regulation 2012 (S.I. No. 375/2012) provides that a solicitor may not act for both vendor and purchaser in a conveyancing transaction except in certain limited and defined circumstances. However, I note that that Regulation came into operation on 1st January 2013 which post-dated the impugned conduct and the making of these disciplinary complaints to the SDT.

124. In these circumstances, I propose to focus on s. 3 of the Solicitors (Amendment) Act 1960 (as amended), to which I now turn.

Does the appellant’s conduct constitute misconduct?

125. The court’s main task now is to assess whether the appellant’s proven conduct constitutes “misconduct” within the meaning of s. 3 of the 1960 Act as amended. For the purposes of this appeal, the relevant part of the section is paragraph (e) which refers to “any other conduct tending to bring the solicitors’ profession into disrepute.”

126. As noted by Collins J. in Law Society of Ireland v. Doocey [2022] IECA 2, “dishonesty” is not a separate category or heading of misconduct for the purposes of the 1960 Act. Nor is dishonesty a precondition to the making of a strike-off order under s. 8(1)(a)(i). Honesty is, of course, a fundamental attribute required of all legal professionals in practice in the State, both barristers and solicitors. The Solicitor’s Guide to Professional Conduct identifies honesty as one of the core values of the profession.

127. There appears to be no judicial or legislative definition of dishonesty. As noted by Lord Hughes JSC in Ivey v. Genting Casinos (UK) Ltd [2017] UKSC 67 at para. 53, and endorsed by Collins J. in the Court of Appeal in Doocey, dishonesty is a concept “characterised by recognition rather than by definition”.

128. The respondent contends that at the root of the appellant’s misconduct in the present case are acts of conveyancing: a property’s transfer without payment, and its use as security for lending without the knowledge or consent of the owner. Relying on Law Society v. Coleman [2020] IEHC 381, the respondent cites the observations of Simons J. on the absolute necessity for accuracy in representations in a conveyancing context. A solicitor’s word is his or her bond. If a solicitor confirms that a particular state of affairs exists, then the recipient is entitled to rely on that confirmation. Simons J. emphasised the vital public interest in ensuring that solicitors carry out conveyancing transactions with integrity and probity.

129. The respondent submits that acts of dishonesty constitute instances of misconduct, and that the conduct alleged here involves obvious dishonesty. By analogy with the findings in Coleman, the respondent submits that the matters alleged constitute “any other conduct tending to bring the solicitors’ profession into disrepute” within the meaning of s. 3 of the 1960 Act. Therefore, says the respondent, the disciplinary charges are made out.

130. In order to properly assess this remaining issue, it is firstly necessary to record the court’s findings on the key issues. It seems to me the following factors have a particular bearing:

a) It has not been proved beyond a reasonable doubt that Mr. Fleming had ended all involvement with Western Concrete by 2005;

b) It has not been proved beyond a reasonable doubt that Mr. O’Callaghan did not understand the transaction to be a joint venture;

c) It has not been proved beyond a reasonable doubt that the parties envisaged that €250,000 would be paid to the respondent for the transfer of the lands;

d) It has not been proved beyond a reasonable doubt that Mr. Fleming had no knowledge of the bank’s role in the transaction;

e) It has not been proved beyond a reasonable doubt that Mr. O’Callaghan deliberately damaged the respondent’s interests;

f) It has not been proved beyond a reasonable doubt that Mr. O’Callaghan knowingly exploited a vulnerable client;

g) It has not been proved beyond a reasonable doubt that Mr. O’Callaghan failed to transfer monies due to his client; and

h) It has been proved beyond a reasonable doubt that Mr. O’Callaghan acted for both sides in the transfer of the lands where there was a clear and obvious conflict of interest.

131. While the court has reservations about the adequacy of the service provided to the client and is deeply unimpressed by Mr. O’Callaghan’s failure to caution the respondent or the Flemings to get separate legal advice, the court is not minded to conclude that it has been demonstrated to the required standard that Mr. O’Callaghan was guilty of dishonesty in relation to the transaction.

Is dishonesty an essential requirement for professional misconduct?

132. The next issue I have to decide is the question of whether conduct can constitute “misconduct” within the meaning of s. 3 of the 1960 Act in the absence of a finding of dishonesty, fraud or moral turpitude. This is the issue on which the Law Society made submissions on the eve of judgment. In my view, the Society is correct in contending that the test for professional misconduct embraces two separate and alternative limbs and that proof of either limb to the required standard will be sufficient to constitute professional misconduct. Those two limbs are firstly, conduct which is “infamous” or “disgraceful” in a professional respect (in the sense that those adjectives are used in the caselaw), and secondly, conduct which falls short of the standard expected of a professional and which is “serious”. That these are alternative limbs of the one test is clear from the leading case of O’Laoire v. The Medical Council (Unreported, High Court, Keane J. 27th January 1995).

133. In O’Laoire, Keane J. distilled the following principles from the caselaw on professional misconduct:

(1) Conduct which is “infamous” or “disgraceful” in a professional respect is “professional misconduct”.

(2) Conduct which would not be “infamous” or “disgraceful” in any other person, if done by a medical practitioner in relation to his profession, that is, with regard either to his patients or to his colleagues, may be considered as “infamous” or” disgraceful” conduct in a professional respect.

(3) “Infamous” or “disgraceful” conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.

(4) The fact that a person wrongly but honestly forms a particular opinion cannot of itself amount to infamous or disgraceful conduct in a professional sense.

(5) Conduct which could not properly be classified as “infamous” or “disgraceful” and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute “professional misconduct” if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the standards of conduct expected among medical practitioners.

134. In Carroll, the Supreme Court applied the test in O’Laoire to the solicitors’ profession. McKechnie J. at para. 51 of his judgment stated that there was no dispute but that in conjunction with a statutory definition (if any), a court should apply the principles of law outlined in O’Laoire when adjudicating generally upon an allegation of misconduct in respect of a solicitor.

135. Counsel for the Law Society provided several examples of cases where findings of misconduct were made in the absence of findings of moral turpitude, fraud or dishonesty. These included cases involving charges of failing to maintain proper books of account (Sheehan v. Law Society (Kearns P.) [2015] IEHC 402), failing to reply to correspondence from a client and/or the Law Society (Murphy v. Law Society (MacGrath J.) [2019] IEHC 724), failing to comply with a solicitor’s undertaking (Law Society v. Walsh (Barniville P. [2023] IEHC 165) and, as determined by this court, breaching Solicitors Accounts Regulations (Law Society v. Lohan [2024] IEHC 709).

136. While it should be noted that some of these cases also involved breaches of regulations made under the Solicitors Acts 1964 to 2002 – and therefore potentially met the test for misconduct under s. 3(c) of the 1960 Act as amended, as well as s. 3 (e) – caselaw still supports the proposition that a finding of moral turpitude, fraud or dishonesty is not a pre-requisite to a finding of misconduct.

137. Returning to the statutory test for misconduct, the governing provision as I have said is s. 3 of the 1960 Act as amended by s. 24 of the Solicitors (Amendment) Act 1994 (as amended) and substituted by s. 7 of the Solicitors (Amendment) Act 2002. The parties are agreed that for the purposes of this appeal, the relevant part of the definition of “misconduct” is paragraph (e), which refers to “any other conduct tending to bring the solicitors’ profession into disrepute”. The questions I have to decide therefore are whether the conduct proved against the appellant, with respect to the first allegation of acting for both sides in a transaction where there was a clear conflict of interest: a) is conduct “tending to bring the solicitors’ profession into disrepute”, and b) (in accordance with the test in O’Laoire) involves conduct in a professional respect which falls short of the standard expected of a professional and is serious.

138. The appellant contends that the respondent has failed to prove to the required standard that the appellant’s conduct meets the test for misconduct, whether in accordance with the statutory test or the second limb of Keane J.’s test in O’Laoire. The appellant also raises fair procedure objections and submits that it would be constitutionally unfair and procedurally irregular to allow the respondent and the Law Society at this stage to advance a case based on the second limb of O’Laoire, in circumstances where the case run before the tribunal, and the misconduct allegations as preferred in the original Form DT1 complaint, were premised on an overarching allegation of dishonesty involving the failure to hand over to Nirvanna €250,000 for the sale of the lands. The appellant submits that if that overarching allegation is adjudged to fail on the evidence, that should be the end of the matter. The appellant submits that it would simply be unfair to allow the respondent at this remove to “move the goalposts” by advancing an alternative case as to a serious departure from expected standards, wholly decoupled from the dishonesty charge which the appellant came to meet. The appellant submits that such an approach would give rise to a clear breach of fair procedures in circumstances where, firstly, the new allegation was never put to the appellant when he gave evidence, and secondly no evidence has been called from an expert witness as to expected minimum standards to be adhered to by a solicitor in a conflict-of-interest situation.

139. I will endeavour to address each of the appellant’s objections separately. The appropriate place to start is the context in which the Law Society made the intervention on the morning the court was initially intending to deliver judgment. That intervention was considered necessary in order to correct, for the court’s benefit, a significant misstatement of the law in para. 86 of the appellant’s written submissions. In that paragraph, the appellant submitted, by reference to an excerpt from Mills, Disciplinary Procedures in the Statutory Professions, (Bloomsbury Professional, 2011) that what is essential for a finding of misconduct in the general sense is “… an element of one or more of (i) moral turpitude, (ii)

fraud or (iii) dishonesty”. For the reasons that I have already outlined, that submission was an incomplete and incorrect statement of the law. The court accepts – as did counsel for the Law Society – that that misstatement of the law was not deliberate and arose from an inadvertence. However, the error still needed to be corrected and in my view it was entirely appropriate for counsel to address the court on the issue, so that the court was properly and fully addressed on the correct legal test to apply for professional misconduct.

140. The second matter of context to note is that the court adjourned the proceedings so that counsel for the appellant could have a proper opportunity to make submissions on the issue and the court directed that the appellant, in advance of the adjourned date, should be given copies of any caselaw the Law Society intended to rely on.

141. The third issue of context is that when the matter resumed before me on the adjourned date, the agreed position of the parties was that the O’Laoire test, correctly interpreted, did indeed involve the two alternative limbs for professional misconduct that I have already described.

142. In these circumstances, I find that it was not only appropriate but necessary for the Law Society to address the court on the significant error that had been made in the appellant’s submissions. While it is most unfortunate that the intervention came so late in the day, it was still very much in the interests of justice that the error of law was corrected.

143. Turning to the appellant’s fair procedure objections, I am not satisfied that any procedural unfairness arises as a result of the court considering and applying the second limb of Keane J.’s test in O’Laoire to the facts as found by the court. An examination of the wording of the first disciplinary allegation set out in the report from the SDT tells us that the appellant was found guilty of the complaint that he “Purported to act for both the Vendor and the Purchaser in a transaction where there was a clear conflict of interest”. The same wording appears in the Form DT2 completed by the respondent. That wording makes no mention of moral turpitude, fraud or dishonesty. It is a discrete allegation alleging in substance that the appellant acted for both sides in a transaction where there was a clear conflict of interest. The appellant was at all times on clear notice that that was one of the allegations he faced.

144. Moreover, a reading of the transcript confirms that this specific allegation was put to the appellant several times by counsel for the respondent on day 2 (pg. 61 line 9) as to a breach of duty and pg. 63 line 15, pg. 64 line 12, and pg. 69 line 21 as to a conflict of interest. Moreover, the appellant was also asked questions by the court about the clear potential for conflicts to arise between the interests of the respondent, its shareholders and those of Mr. Preston. The transcript indicates on pg. 81 line 33 that the appellant was asked: if it was envisaged that no monies would go to Nirvanna when the lands transferred, did that not trigger in the appellant’s mind the necessity for Nirvanna’s shareholders to be given separate advice? To his credit, the appellant answered the court’s questions to the best of his ability and the transcript shows that the conflicts issue was further explored in a degree of detail on the following page as well.

145. On any view of the evidence, it is quite clear that the appellant was given every opportunity to address the conflicts issue forming the substance of the first allegation and no procedural unfairness arose in the circumstances. The appellant was on notice of the allegation, was questioned about it, and gave the responses that he gave.

146. I do not accept the respondent’s characterisation that there has been an unfair “moving of the goalposts”. The conflict-of-interest allegation, decoupled from the dishonesty allegation of failing to pass on the monies, was always in play before the SDT. At a level of principle, the mere fact that some allegations may be found proven, while others are not, is not a basis for collapsing the entire inquiry.

147. Finally, I want to address the appellant’s separate argument that the first misconduct complaint should fail on account of the respondent not calling an independent expert witness to testify about the standards expected in the solicitors’ profession and as to the level of seriousness of the falling short of the expected standards for which the appellant was responsible. In my view, on the facts of this case, this point is without substance. In reality, the appellant’s point under this heading is more theoretical than real. It was not a point pressed by the appellant in the main hearing. Whether expert evidence will be required in a given case will depend on the circumstances of the case and the nature and context of the complaint under consideration. Each case will fall to be dealt with in accordance with its own individual facts. In my view, the avoidance of clearcut conflicts of interest and the necessity to ensure that clients who need different advice or whose interests are impacted in different ways by the same transaction get independent legal advice are matters of such basic and selfevident importance for any solicitor that no expert evidence on this subject should be required.

148. In McManus, Kearns P. observed on pg. 30 as follows: “I would have thought the keeping of accurate medical records was a matter of such basic importance to the discharge of the functions of any medical practitioner and that no expert evidence on this topic would have been required or put forward by the Committee in the course of the Inquiry. However inconvenient and burdensome it may be to write up medical records accurately, such records constitute a vital safeguard for both medical practitioners and patients alike in any situation where it later becomes necessary to conduct any form of investigation as to what transpired during the course of a patient’s treatment. Every practitioner must be taken as knowing that records may later be used in court proceedings or other investigations or inquiries and hence their importance is self evident.”

149. By analogy with the decision of Kearns P. in McManus, I find that no expert evidence on the conflicts issue was required. The risk of a conflict arising in the circumstances was so clearcut and obvious that the situation cried out for the respondent to be cautioned to obtain independent advice. In reality, on a fair reading of Mr. O’Callaghan’s evidence, this was not seriously disputed.

150. Stepping back from matters, it should have occurred to the appellant from the outset, or certainly no later than when he learned of the changed security requirements of the bank, that the respondent needed to be separately advised and the implications of the changed security arrangements fully explained to Nirvanna’s shareholders. The appellant fairly accepts that he retained responsibility for the transaction, notwithstanding that the file was also being handled by another solicitor in the office. I am entirely satisfied that in the circumstances of the case the appellant’s failure to ensure the respondent was separately advised amounted to a serious falling short of expected standards for any solicitor. That the appellant may have thought this is what Nirvanna or the Flemings actually wanted is ultimately no defence to the first allegation. That the appellant may have subjectively thought both men had a common interest in a joint venture is irrelevant to the issue of the appellant’s obligations stemming from the potential conflicts of interest.

151. It is not remotely surprising that the appellant by choosing to act for both sides in the one transaction on the facts of this case gave rise not just to the risk, but the actuality that the solicitors’ profession would be brought into disrepute. The decision to act for both sides in the circumstances, coupled with the failure to ensure the respondent was separately advised, represented a serious falling short of the standards expected of solicitors. While it concerned the one transaction, the appellant’s failures in this regard persisted for upwards of nine months as negotiations with the bank proceeded. At no stage during the period of March 2006 to January 2007 was the growing risk of a conflict of interest addressed or raised with the respondent.

152. The other point to bear in mind is that in order for the test for misconduct to be met, it is not necessary that the conduct in question should be such as to warrant the solicitor’s name being struck off the Roll. That is not what is required. As the section indicates, the meaning of professional misconduct includes any conduct tending to bring the solicitor’s profession into disrepute. As noted by Kearns P. in Sheehan at pg. 15, there is a range of behaviour which falls within the meaning of misconduct and some forms of misconduct are more serious than others. It follows that even if the sanction ultimately imposed is well short of a strike-off, for instance the sanction of a censure, that does not preclude a finding that the impugned conduct meets the test for misconduct.

153. In all the circumstances, I find that the test for misconduct under s. 3 of the Solicitors (Amendment) Act 1960 as amended has been met. In the circumstances, I am satisfied to the required standard that the respondent has proved its case with respect to the first misconduct allegation before the court.

Conclusion

154. For the reasons indicated, I propose to uphold the tribunal’s decision on the first disciplinary charge but will allow the appellant’s appeal with respect to the second, third and fourth disciplinary charges.

155. I will give the parties an opportunity to consider my judgment before hearing submissions on the question of sanction. Obviously, the findings that I have made and the fact that I am dismissing three of the four disciplinary charges, will have a significant bearing on the question of sanction. The parties and the Law Society may also wish to address the question of costs and the terms of the court’s final order.

Signed: Micheál O’Higgins

Appearances: Michael Mullooly BL instructed by Staunton Caulfield & Co. Solicitors for the appellant. Ruadhán O’Ciaráin BL instructed by Langsch & Cunnane Solicitors LLP for the respondent. Neasa Bird BL instructed by Fieldfisher Ireland LLP for the Law Society of Ireland.