Professional Misconduct Without Dishonesty: Conflicts of Interest as Conduct “Tending to Bring the Solicitors’ Profession into Disrepute” – Commentary on O’Callaghan v Nirvanna Property Holdings Ltd [2025] IEHC 693

1. Introduction

This High Court judgment by O’Higgins J in O’Callaghan v Nirvanna Property Holdings Ltd [2025] IEHC 693 is a significant addition to Irish disciplinary jurisprudence on solicitors. It sits at the intersection of three important themes:

the standard and test for “professional misconduct” under s. 3 of the Solicitors (Amendment) Act 1960 as amended;
the disciplinary consequences of conflicts of interest in conveyancing and commercial arrangements, even where dishonesty is not proven; and
the procedural and evidential approach to appeals from the Solicitors Disciplinary Tribunal (“SDT”) under s. 7 of the 1960 Act.

The case arose from a 2006–2007 property transaction concerning lands in County Mayo (the “Mayo lands”), owned by Nirvanna Property Holdings Ltd (“Nirvanna”). The appellant, solicitor Declan O’Callaghan, was alleged to have:

acted for both vendor and purchaser in circumstances of clear conflict;
failed to ensure consideration was paid before title passed;
provided inadequate professional services and breached his duty of care to Nirvanna; and
continued to act for the purchaser in proceedings by Nirvanna to recover the consideration.

The SDT found all four allegations proved and recommended that Mr O’Callaghan be struck off. On appeal, the High Court conducted a full rehearing with oral evidence. It ultimately:

upheld only the first allegation (conflict of interest) as professional misconduct; and
allowed the appeal on allegations 2–4.

The decision is especially important because the court:

reaffirmed that dishonesty is not a prerequisite for a finding of professional misconduct;
treated a serious conflict of interest, and the failure to ensure independent legal advice, as misconduct under s. 3(e) (“any other conduct tending to bring the solicitors’ profession into disrepute”) even though:
- no dishonesty was proved; and
- the impugned conduct pre‑dated the 2012 Conveyancing Conflict of Interest Regulations; and>
held that no expert evidence is required to establish that acting in a clear conflict of interest represents a serious falling short of professional standards.

This commentary examines the facts, the reasoning, the authorities relied upon, and the broader implications for the law of professional misconduct and conflict of interest in Irish solicitor practice.

2. Factual and Procedural Background

2.1 The Mayo lands, Western Concrete and the alleged “sale”

Nirvanna, a company associated with Tom Fleming and his family, owned the Mayo lands. Tom Fleming, a groundworks contractor with limited formal education and literacy difficulties, and a builder/developer, Freddie Preston, had in 2004 set up Western Concrete Ltd as a concrete business. Western Concrete’s shares were initially split one each between Mr Fleming and Mr Preston, and they were both directors.

By late 2005, Mr Fleming had ceased to act as director of Western Concrete and believed he was effectively out of the company, though his single share remained in his name due to an alleged oversight by his accountants.

In December 2006, a Deed of Transfer was executed under which:

Nirvanna, as registered owner, transferred the Mayo lands to Mr Preston as purchaser;
the recited consideration was €250,000; and
the deed acknowledged receipt of this consideration.

However, no payment was in fact made to Nirvanna. The fundamental factual dispute was whether:

this was a straightforward sale for €250,000 as alleged by Nirvanna; or
the transfer was part of a joint venture financing arrangement for Western Concrete, with no intention that €250,000 would be paid in cash, as maintained by Mr O’Callaghan.

2.2 Bank of Ireland loan, changing security and the alleged joint venture

Bank of Ireland had offered loan facilities of €400,000 in March 2006 to Western Concrete and the Prestons, initially seeking:

a fixed and floating debenture over Western Concrete, including a specific charge over the Mayo lands (then in Nirvanna’s name).

Subsequent correspondence showed that:

initially, the bank contemplated either a transfer of the Mayo lands or a share transfer in Nirvanna to Western Concrete;
by January 2007, the bank’s facility letter required a first legal mortgage over the Mayo lands registered in Mr Preston’s name (not Western Concrete’s);
the security structure evolved across 2006–2007, with the bank ultimately insisting that:
- title be placed in Mr Preston’s personal name; and
- neither Mr Fleming nor his company feature in the bank’s security documentation.

Mr O’Callaghan’s case was that the land transfer represented Mr Fleming’s contribution in kind (valued at €250,000) to a joint venture with Mr Preston through Western Concrete. No money was ever meant to change hands; instead, profits from the concrete business were supposedly to be shared 50:50.

The court had the benefit of:

Bank of Ireland loan offers and correspondence;
valuation evidence;
correspondence with the Flemings’ accountants; and
evidence from:
- Ms Niamh Creighton, the solicitor in Mr O’Callaghan’s office managing much of the file; and
- Mr Declan O’Connor, an independent solicitor who had earlier acted for Mr Preston/Western Concrete in acquiring a concrete yard.

2.3 The complaint to the SDT and its findings

In 2010, Nirvanna (via Tom Fleming) lodged a complaint to the SDT alleging professional misconduct on four grounds (as summarised above). In 2011, the SDT found a prima facie case and directed an inquiry. Substantial procedural delay followed:

adjournments to allow overlapping High Court proceedings;
a 2020 listing aborted because Tom Fleming, a non-lawyer director, could not represent the company before the SDT;
Covid‑related postponements; and
judicial review proceedings by Mr O’Callaghan challenging the SDT’s jurisdiction and its earlier adjournment decision, ultimately rejected by Barr J in O’C v Solicitors Disciplinary Tribunal [2022] IEHC 13 and by Butler J in the Court of Appeal in O’Callaghan v Solicitors Disciplinary Tribunal [2023] IECA 3.

The SDT inquiry finally proceeded in June 2024. It:

found all four allegations proved as professional misconduct; and
recommended that Mr O’Callaghan be struck off the Roll of Solicitors and that costs be awarded against him.

Under s. 7 of the 1960 Act, the Law Society was required to bring the SDT’s report before the High Court. Simultaneously, Mr O’Callaghan appealed the SDT decision. The President of the High Court (Barniville P) ruled in [2025] IEHC 312 that the appeal must proceed by way of a full rehearing (a hearing de novo) under Order 53B, r. 9(h)(i) RSC, not a limited review on the record. It was this rehearing that came before O’Higgins J.

3. Summary of the High Court Judgment

O’Higgins J conducted a two-day oral hearing in July 2025, hearing evidence from:

Tom Fleming (for the respondent);
Mr O’Callaghan himself;
Ms Niamh Creighton, solicitor (formerly of Mr O’Callaghan’s firm); and
Mr Declan O’Connor, independent solicitor.

Key outcomes were:

3.1 Factual findings

The court was not satisfied beyond reasonable doubt that:
- Mr Fleming had ended all involvement with Western Concrete by 2005;
- the parties envisaged that €250,000 would actually be paid to Nirvanna for the lands;
- Mr O’Callaghan did not understand the transaction as a joint venture financing exercise;
- Mr Fleming was wholly unaware of the bank’s involvement; or
- Mr O’Callaghan had acted dishonestly, exploited a vulnerable client, or failed to pass on monies due.
However, the court was satisfied beyond reasonable doubt that:
- there was a clear conflict of interest in Mr O’Callaghan’s firm acting on both sides of the transaction; and
- Mr O’Callaghan failed to advise the Flemings/Nirvanna to obtain independent legal advice, despite being on notice of changing bank security requirements that significantly affected their interests.

3.2 Disposition of the four disciplinary allegations

Allegation 1 – conflict of interest: The court upheld this as proved and as amounting to professional misconduct under s. 3(e) of the 1960 Act:
- Mr O’Callaghan was responsible for a transaction in which his firm acted for both the transferor (Nirvanna / the Flemings) and the transferee (Mr Preston / the joint venture);
- there was an obvious risk, and ultimately actuality, of conflicting interests; and
- Mr O’Callaghan failed to alert the Flemings to this, or to ensure they obtained independent advice, even as the bank’s requirements evolved in a way adverse to their position.
Allegation 2 – failure to ensure consideration was paid: Dismissed. The court held that it had not been proved beyond a reasonable doubt that €250,000 was ever intended to be paid in cash to Nirvanna. A “core element” of the charge was therefore unproven.
Allegation 3 – inadequate professional services / breach of duty of care: Dismissed, but with strong criticism. While the court identified serious concerns about the adequacy of information and protection given to the Flemings, it could not conclude to the criminal standard that Mr O’Callaghan’s conduct met this particular allegation as framed.
Allegation 4 – continuing to act for purchaser in proceedings: Dismissed. The evidence showed Mr Preston was ultimately referred to another firm (Mahon Sweeney Solicitors) who delivered a defence, and this was uncontradicted.

3.3 Professional misconduct without dishonesty

The critical legal holding is that professional misconduct can be established under s. 3(e) of the 1960 Act in the absence of dishonesty, where a solicitor’s conduct:

tends to bring the solicitors’ profession into disrepute; and
constitutes a serious falling short of the standards expected of a solicitor, within the second limb of the test stated by Keane J in O’Laoire v Medical Council.

On this basis, the proven conflict of interest and failure to secure independent advice for the Flemings amounted to misconduct, despite the absence of a finding that Mr O’Callaghan was dishonest or that money was misappropriated.

3.4 Next steps

The judge:

upheld the SDT’s finding only on allegation 1;
allowed the appeal on allegations 2–4; and
adjourned to hear submissions on sanction and costs, noting that these findings would have a “significant bearing” on sanction, given that three of four charges had fallen.

4. Legal Framework

4.1 Statutory regime and definition of misconduct

The governing statutory framework comprises the Solicitors Acts 1954–2008, particularly:

s. 3 of the Solicitors (Amendment) Act 1960 (as substituted and amended), which defines “misconduct”; and
s. 7 of the 1960 Act, which provides for SDT inquiries and appeals to the High Court.

For this case, the crucial provision is s. 3(e), which includes within “misconduct”:

“any other conduct tending to bring the solicitors’ profession into disrepute.”

The court also relied on the statutory definition of “client” in s. 2 of the Solicitors (Amendment) Act 1994, which includes:

“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”.

This was relevant because, even if instructions were notionally channelled through one person (Tom Fleming), the interests of other shareholders and of Nirvanna itself were clearly affected by the transaction.

4.2 Conflict of interest guidance and regulations

Two non‑statutory and regulatory sources were important:

A Guide to Professional Conduct of Solicitors in Ireland, 2nd ed. (Law Society, 2002).
- This was the applicable guidance at the time of the 2006–2007 transaction.
- Paragraph 3.2 cautions, as a general principle, against acting for both vendor and purchaser in a property transfer.
- Paragraph 3.3(c) permits an exception only where:
  
  “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”.
Solicitors (Professional Practice, Conduct and Discipline – Conveyancing Conflict of Interest) Regulations 2012 (S.I. No. 375/2012).
- Article 3 prohibits acting for both vendor and purchaser in conveyancing except in limited specified cases.
- However, these regulations came into operation on 1 January 2013 – after the events in question and after the complaint was made.
- O’Higgins J correctly held they did not govern the conduct here, though they reflect a policy shift reinforcing the seriousness of such conflicts.

The current (4th ed., 2022) Solicitors’ Guide to Professional Conduct was cited by the court for its articulation of conflict principles, but again as general guidance rather than as binding on a 2006 transaction.

4.3 Standard of proof in disciplinary proceedings

The parties agreed, and the court endorsed, that the applicable standard of proof in solicitor disciplinary matters is the criminal standard: proof beyond reasonable doubt. This follows:

Law Society v Walker [2007] 3 I.R. 581, where Finnegan P cited the Supreme Court in O’Laoire v Medical Council to that effect; and
the discussion in O’Laoire (O’Flaherty J), emphasising that the essence of such inquiries is to find out “by clear evidence the pith and substance of the misdeed”.

At the same time, the court reiterated, following McManus v Fitness to Practise Committee of the Medical Council [2012] IEHC 350 (Kearns P), that:

the criminal standard of proof does not import all the procedural rules of a criminal trial; and
disciplinary bodies may adopt more flexible procedures, provided fair procedures and natural justice are respected.

4.4 Hearsay and admissibility of evidence

Relying on Kennedy v Law Society (No. 3) [2002] 2 I.R. 458, the court recalled that:

the exclusionary rule of evidence is not confined to criminal trials but its application in non‑criminal proceedings should be limited;
disciplinary tribunals should be slow to exclude probative evidence on purely technical grounds; and
deliberate and knowing misconduct in obtaining evidence may justify exclusion, but mechanical exclusionary rules are inappropriate.

On this basis, the court was willing to admit and rely on certain hearsay elements in Ms Creighton’s evidence (e.g. as to the Bank’s stance and communications with accountants), viewing them as necessary to understand the transaction and supported by documentary records. Conversely, it exercised its discretion to disregard certain late‑produced documents (such as a last‑minute attendance note and a letter from another solicitor) on fairness grounds.

4.5 Appeals from the SDT: full rehearing

Order 53B, r. 9(h)(i) RSC requires that an appeal to the High Court under s. 7 of the 1960 Act proceed by way of a full rehearing, not a narrow review on the record. That approach had been confirmed by the President earlier in 2025. Accordingly, O’Higgins J:

heard live evidence and cross‑examination afresh;
received additional evidence not before the SDT (notably from Ms Creighton and Mr O’Connor); and
made independent factual findings, rather than simply reviewing the reasonableness of the SDT’s conclusions.

5. Detailed Analysis of the Court’s Reasoning

5.1 The authority of the complainant company

Mr O’Callaghan again challenged whether Nirvanna had validly authorised the 2010 complaint to the SDT, arguing the SDT lacked jurisdiction. This issue had already been litigated and rejected in the judicial review and Court of Appeal proceedings.

O’Higgins J adopted the reasoning of Butler J in O’Callaghan v Solicitors Disciplinary Tribunal [2023] IECA 3, particularly paras 36, 40–42:

the complaint centred not on actual lack of authority, but on alleged inadequacies in how that authority was evidenced;
the complaint had not been raised before the SDT at the appropriate time; and
information in the Form DT3 was sufficient to satisfy the SDT, at least in general terms, that the complaint was properly made on behalf of Nirvanna.

The court added that a 2024 board resolution of Nirvanna plainly confirmed the company’s authorisation of the complaint. The jurisdictional objection was dismissed as “lacking any substance”.

5.2 Approach to contested facts and evidential gaps

The heart of the case was a stark factual conflict between:

Tom Fleming’s account of a simple unpaid sale of the Mayo lands; and
Mr O’Callaghan’s account of a land transfer as part of a joint venture financing arrangement, without cash consideration.

The court recognised several evidential gaps:

Mr Preston had died in 2022 and could not testify;
no representative of Bank of Ireland was called;
no accountant from the Flemings’ firm (who were also accountants to Western Concrete) gave evidence, though their role was relevant to the shareholding and structuring; and
no other Fleming family members testified to their understanding of whether €250,000 was ever expected.

While mindful not to criticise parties for not calling certain witnesses (for unknown practical reasons), the court noted these gaps made it harder to resolve the core dispute.

The judge looked for “objective pointers or nuggets” to corroborate one side or the other. Among the factors undermining Nirvanna’s “simple sale” narrative were:

the absence of a contract for sale or requisitions on title;
no evidence of a deposit being demanded or paid;
the long delay (15–18 months) before any formal demand for the €250,000 was made;
the bank’s security documentation and correspondence, which reflected a joint venture structure and changing security requirements;
Mr O’Connor’s evidence that in 2004–2005, Mr Fleming was clearly associated with Western Concrete’s acquisition of a concrete yard; and
the fact that professional fees for the transaction were invoiced to Western Concrete, not to Nirvanna, and no conveyancing fees were charged to or paid by the Flemings at the time.

The court was also sceptical of a crucial late‑produced attendance note (purporting to record a key March 2006 meeting between Fleming, Preston and O’Callaghan). Because this document:

was produced only on day 2 of the High Court hearing;
had not been before the SDT or exhibited in years of affidavits; and
related to a central disputed meeting;

the judge found it procedurally unfair to admit and instead disregarded it entirely. By contrast, he allowed reliance on documentary correspondence and loan offers (which could be independently examined) and on Ms Creighton’s and Mr O’Connor’s evidence.

5.3 Evaluation of witnesses

Tom Fleming

The court found Mr Fleming broadly honest and straightforward, but:

poor with dates and detail;
capable of concessions under cross‑examination; and
less compelling in oral evidence than in affidavit form.

Certain aspects of his account – particularly his belief that he had entirely “signed out” of Western Concrete by 2005 – were undermined by objective records (e.g. the continuing shareholding; Mr O’Connor’s evidence).

Niamh Creighton, solicitor

Ms Creighton, the solicitor who prepared the December 2006 deed, was a pivotal witness. The court found her to be:

generally truthful, detailed, and importantly, corroborated by external documentation (loan offers, valuation, accountant correspondence);
a reluctant participant, understandably unhappy at being drawn back into a 19‑year‑old controversy; and
mistaken in some details (e.g. confusing the loan amount and some account logistics), but reliable on the core context.

Her evidence supported the existence of a joint venture involving both Fleming and Preston and her understanding that:

the bank insisted on certain security structures;
the transaction was designed to satisfy those requirements; and
€250,000 was a valuation figure rather than a price expected to be paid in cash to Nirvanna.

She also testified that she did not advise Mr Fleming to seek independent representation (contradicting Mr Fleming’s version that she had, and later that Mr O’Callaghan had discouraged it). The court preferred her evidence on this issue.

Declan O’Connor, solicitor

Mr O’Connor was entirely independent and had no prior connection with Mr O’Callaghan. He:

acted for Mr Preston in 2004–2005 when Western Concrete acquired a concrete yard from a receiver;
received instructions from Mr Preston that the yard purchase was for Western Concrete, a company co‑founded with Mr Fleming; and
therefore confirmed that as late as April 2005, Mr Fleming was materially associated with Western Concrete.

This undercut Mr Fleming’s claim that his involvement ended in 2005, and supported the plausibility of a joint venture context.

5.4 Findings on the “joint venture” and consideration

On the central issue of whether €250,000 was meant to be paid as consideration for the Mayo lands, the court held that:

the deed’s recital of consideration and acknowledgment of receipt, while important, could not be viewed in isolation;
the totality of the evidence (loan and security documents, correspondence, objective pointers) raised sufficient doubt that any cash payment was envisaged;
the respondent, who bore the onus of proof, had not established beyond reasonable doubt that the transfer was a straightforward sale for €250,000; and
the defence position that the transfer was a joint venture contribution in kind by Nirvanna/Fleming, though not free from concerns, had not been negatived to the required standard.

This conclusion was central to the dismissal of allegations 2 and 3, and also coloured the court’s approach to whether dishonesty had been proved. The judge explicitly stated he was not prepared to conclude that Mr O’Callaghan:

failed to pass on monies due; or
knowingly exploited a vulnerable client.

5.5 Analysis of each disciplinary allegation

5.5.1 Allegation 2 – failure to ensure consideration passed

Because the respondent failed to prove that €250,000 was in fact intended to be paid, a “core element” of this allegation failed. There could be no culpable failure to ensure payment of consideration if it was not established that any such cash consideration was supposed to be paid at all. The allegation was therefore dismissed.

5.5.2 Allegation 4 – continuing to act for purchaser in proceedings

The allegation was that Mr O’Callaghan continued to act for Mr Preston in proceedings brought by Nirvanna to recover the consideration. Evidence showed:

Mr Preston initially consulted Mr O’Callaghan’s firm; but
was ultimately referred to Mahon Sweeney Solicitors, who delivered a defence.

This evidence was uncontradicted. The court therefore dismissed the allegation.

5.5.3 Allegation 3 – inadequate professional services / breach of duty of care

The court identified three significant concerns about the services provided:

Lack of clear warning as to transfer of title:
- There was little evidence that Mr O’Callaghan clearly explained to Mr Fleming and the other shareholders that Bank of Ireland’s evolving requirements meant:
  - title to the Mayo lands would be transferred out of Nirvanna; and
  - into the personal ownership of Mr Preston, not the joint venture company.
Inadequate communication about bank negotiations:
- The correspondence showed Bank of Ireland communicated primarily with Mr Preston and the solicitors; the Flemings appeared far less informed.
- The court considered credible Mr Fleming’s evidence that he was not fully kept apprised of changing bank demands.
Failure to secure contemporaneous protection for profit‑sharing:
- Even accepting a joint venture and a supposed 50:50 profit‑sharing agreement, the transfer allowed the lands (the main contribution by the Flemings) to pass to Mr Preston without:
  - any contractual protection of the Flemings’ profit‑sharing rights; or
  - other security to safeguard their interest.

These concerns underscored, in the judge’s words, the “necessity” of independent legal advice for the Flemings. Nonetheless, given the uncertainties about the exact scope of the alleged duty, the joint venture framework, and the criminal standard of proof, the judge concluded that:

there remained a reasonable doubt as to whether the allegation, as framed, was proved; and
he could not find beyond reasonable doubt that Mr O’Callaghan provided “inadequate professional services” or breached his duty of care to the company in the way alleged.

The allegation was therefore dismissed, though the findings fed into the court’s assessment of the conflict‑of‑interest allegation.

5.5.4 Allegation 1 – conflict of interest

This was the central surviving allegation and the one the court ultimately upheld as misconduct. Its substantive content was 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.”

The court’s reasoning involved several steps.

(a) Multiple existing clients and vulnerable circumstances

Tom Fleming and Nirvanna were longstanding clients; Mr O’Callaghan had advised on the company’s formation and earlier transactions.
Mr Preston and his entities were also clients of the firm.
Western Concrete, the joint venture company, was itself a client.
Tom Fleming:
- had left school at 13;
- had difficulty reading, particularly legal documents; and
- was dyslexic and could not spell well.

Although experienced in business, these factors placed him in a relatively vulnerable position vis‑à‑vis complex loan and security arrangements.

(b) Clear potential – and actuality – of conflict

Even on the joint venture narrative, the transaction involved:

land worth €250,000 moving from Nirvanna to Mr Preston personally;
no money being paid; and
no contemporaneous documentation adequately securing Nirvanna or the Flemings’ alleged profit‑sharing rights.

Simultaneously, the Bank was insisting:

that Mr Preston (not Western Concrete) take title; and
that neither the Flemings nor Nirvanna feature on the bank’s security documentation.

On these facts, O’Higgins J held that it should have been “abundantly clear” that:

different advice might need to be given to different clients (Nirvanna/Flemings vs Preston/Western Concrete); and
there was a manifest risk that their interests would diverge.

(c) Failure to ensure independent advice

Despite this, Mr O’Callaghan:

accepted that he did not advise the Flemings or Nirvanna to obtain separate legal advice;
acknowledged under questioning that, with hindsight, the shareholders should have been so advised; and
appeared to rely on the urgency of the transaction and the parties’ wish to “get the deal done” and the loan drawn down.

The judge held that:

acting for both sides in such circumstances was undertaken “at [the solicitor’s] peril”;
it is the solicitor’s duty – not the client’s – to assess conflict risks and decide whether to act;
on these facts, the failure to insist on independent representation for Nirvanna/Flemings constituted a clear breach of basic conflict‑of‑interest obligations; and
this conclusion did not depend on the 2012 Conflict of Interest Regulations but flowed from fundamental principles already expressed in the 2002 Guide.

The court therefore found the factual substratum of Allegation 1 proven beyond reasonable doubt.

6. Precedents and Authorities Cited

6.1 Honesty, reputation and sanctions: Carroll, Bolton and Corrigan

The judge began his legal framework by reiterating the centrality of honesty and integrity in the solicitors’ profession, drawing on:

Carroll v Law Society of Ireland [2016] 1 I.R. 676 (Supreme Court), particularly McKechnie J;
Bolton v Law Society [1994] 1 W.L.R. 512 (Bingham MR); and
Law Society of Ireland v Corrigan [2023] IEHC 389 (Barniville P).

From Bolton, the court quoted Bingham MR’s famous statement that any solicitor who fails to discharge professional duties with “complete integrity, probity and trustworthiness” can expect severe sanctions, and that the primary purpose of strike‑off orders is to:

prevent repetition of misconduct; and
maintain public confidence in the profession’s collective reputation.

McKechnie J’s articulation in Carroll that trust, integrity, probity, and honesty are a “common thread” permeating all levels of the profession was endorsed. He had observed that where proven dishonesty is involved, dismissal (strike‑off) will be a “front line consideration”.

These authorities framed how seriously the court regarded the allegations – but as this case ultimately demonstrates, misconduct may be found without dishonesty, and the absence of dishonesty will be important primarily at the sanctions stage, not at the threshold question of whether misconduct occurred.

6.2 O’Laoire v Medical Council and the two‑limb test for misconduct

The leading authority on the definition of professional misconduct remains O’Laoire v Medical Council (High Court, Keane J, 27 January 1995), applied to solicitors in Carroll.

Keane J distilled five principles, which the judge summarised. Key points are:

Conduct which is “infamous” or “disgraceful” in a professional respect is misconduct.
Conduct not infamous in a layperson can be infamous in a professional when done in relation to professional duties.
“Infamous” or “disgraceful” conduct involves moral turpitude, fraud or dishonesty.
However, there exists a second, alternative limb:

“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 … in which the [professional] concerned has seriously fallen short, by omission or commission, of the standards of conduct expected…”

This second limb – serious professional falling short without dishonesty – is the cornerstone of O’Higgins J’s reasoning in this case.

6.3 Dishonesty as “recognised rather than defined”: Ivey and Doocey

The court accepted, with reference to:

Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 (Lord Hughes JSC); and
Law Society of Ireland v Doocey [2022] IECA 2 (Collins J);

that “dishonesty” lacks a precise statutory or judicial definition and is “characterised by recognition rather than by definition”. More importantly, the court highlighted Collins J’s observation in Doocey that:

“dishonesty” is not a separate statutory category of misconduct under the 1960 Act; and
dishonesty is not a prerequisite for a strike‑off order.

This underlines that the absence of a dishonesty finding does not preclude a finding of misconduct or serious sanctions where other wrongful conduct is established.

6.4 Non‑dishonesty misconduct: Sheehan, Murphy, Walsh, Lohan

To illustrate that misconduct can occur without dishonesty, the Law Society (and the court) cited several cases:

Sheehan v Law Society [2015] IEHC 402 (Kearns P) – failure to maintain proper books of account;
Murphy v Law Society [2019] IEHC 724 (MacGrath J) – failure to reply to correspondence from clients/Law Society;
Law Society v Walsh [2023] IEHC 165 (Barniville P) – failure to comply with a solicitor’s undertaking; and
Law Society v Lohan [2024] IEHC 709 (O’Higgins J) – breaches of Solicitors Accounts Regulations.

These decisions demonstrate that serious regulatory or professional failures, even absent moral turpitude, can satisfy s. 3 (including s. 3(c) breaches of regulations and s. 3(e) “conduct tending to bring the profession into disrepute”).

6.5 Conveyancing accuracy and integrity: Law Society v Coleman

The respondent relied on Law Society v Coleman [2020] IEHC 381 (Simons J), which stresses:

the “absolute necessity for accuracy” in representations by solicitors in conveyancing; and
the public interest in maintaining trust that “a solicitor’s word is his or her bond”.

Though the facts in Coleman involved more explicit misrepresentations, the principle that conveyancing integrity is fundamental informed the court’s view that conflict‑of‑interest failures in such contexts are particularly corrosive to professional reputation.

6.6 Expert evidence and basic professional standards: McManus

Responding to an argument that expert evidence was required to define expected standards in conflict‑of‑interest situations, the court drew an analogy from McManus v Fitness to Practise Committee [2012] IEHC 350, where Kearns P held that:

keeping accurate medical records is so basic a professional duty that no expert evidence was required to establish its importance in disciplinary proceedings.

By analogy, O’Higgins J found that:

avoiding clear conflicts of interest and ensuring clients receive independent advice where necessary is a matter of such basic importance for solicitors that expert evidence is unnecessary to characterise failures as serious professional shortcomings.

7. Clarification of the Professional Misconduct Test

7.1 The misstatement and the Law Society’s late intervention

A striking procedural feature was that, on the morning judgment was initially to be delivered, counsel for the Law Society sought leave to address a “discrete legal issue” regarding the test for “professional misconduct”. This arose because the appellant’s written submissions had wrongly suggested – by quoting an extract from Mills, Disciplinary Procedures in the Statutory Professions – that:

“what is essential for a finding of misconduct … is … an element of one or more of (i) moral turpitude, (ii) fraud or (iii) dishonesty”.

This was incomplete and incorrect: it reflected only the first O’Laoire limb (infamous/disgraceful conduct) and ignored the second limb (serious falling short without dishonesty).

Although the intervention was late, the court:

recognised that the misstatement needed to be corrected “in the interests of justice”; and
adjourned to allow full submissions from all parties, with prior circulation of relevant case law.

When the hearing resumed, all parties accepted that O’Laoire articulated a two‑limb test and that either limb, if proved, could amount to misconduct. The debate then turned to how that test applied here and whether reliance on the “second limb” at this stage infringed fair procedures.

7.2 The court’s resolution: no “moving of the goalposts”

The appellant argued that:

the SDT complaint and hearing had been framed as an accusation of “dishonesty” (failure to hand over €250,000);
once this dishonesty theory was rejected, it would be unfair to “move the goalposts” and rely on a non‑dishonesty “serious falling short” theory; and
no expert evidence or prior notice had been given on that second limb.

The court rejected these arguments:

The wording of Allegation 1 (“purported to act for both the vendor and the purchaser in a transaction where there was a clear conflict of interest”) contained no reference to dishonesty. It was, on its face, a stand‑alone conflict‑of‑interest allegation.
The conflicts issue was expressly put to Mr O’Callaghan in cross‑examination and in questions from the court. He had ample opportunity to address it.
Nothing in fair procedures prevents a tribunal or court from:
- finding some allegations proved and others unproved; or
- treating different proven allegations as misconduct under different limbs of the statutory test.

Therefore, applying the second O’Laoire limb – serious falling short of professional standards, even without dishonesty – did not constitute an unfair expansion or alteration of the case.

7.3 The refined test applied

The court ultimately applied the following composite test for solicitors’ misconduct under s. 3(e), consistent with O’Laoire, Carroll and subsequent case law:

Does the proven conduct constitute:
- “infamous” or “disgraceful” conduct in a professional respect (involving moral turpitude, fraud or dishonesty); or
- a serious falling short, by omission or commission, of the standards of conduct expected of a solicitor, even if it does not involve dishonesty?
Is the conduct “connected with” the solicitor’s professional practice?
Does it amount to “conduct tending to bring the solicitors’ profession into disrepute” within s. 3(e)?

On the facts found, the court answered “yes” in respect of Allegation 1 via the second limb: the conflict‑of‑interest failure represented a serious professional shortcoming which, given its nature and context, tended to bring the profession into disrepute.

8. Conflict of Interest as Misconduct Without Dishonesty

8.1 Why this aspect of the decision is significant

The most important doctrinal contribution of this judgment is its clear affirmation that:

acting in a clear conflict of interest; and
failing to secure independent advice for affected clients;

can constitute professional misconduct, even if:

there is no finding of dishonesty;
no money is shown to have been misappropriated; and
no specific statutory regulation (such as the 2012 Conveyancing Conflict Regulations) applies.

In other words, conflict‑of‑interest failures themselves, where serious and prolonged, are capable of satisfying s. 3(e) as “conduct tending to bring the solicitors’ profession into disrepute”.

8.2 No reliance on post‑2013 regulations

Although the 2012 Regulations explicitly address conveyancing conflicts, the judge deliberately refrained from applying them to a 2006–2007 transaction. Instead, he:

located the duty within the longstanding general principles in the 2002 Guide and common law expectations; and
stressed that even before 2013, solicitors were:
- cautioned against acting for vendor and purchaser;
- required, where they did so, to clearly advise both clients of the desirability of independent representation; and
- obliged to ensure such conflicts did not compromise undivided loyalty, full disclosure, or confidentiality.

The misconduct finding thus rests on bedrock professional norms, not on ex post facto application of later regulations.

8.3 Serious falling short: why this conflict mattered

The conflict here was particularly grave because:

it involved a client of limited literacy transferring a valuable asset out of his family company’s ownership;
no money was to be paid at completion;
the bank’s stipulations ensured the client’s company and name would not appear on the security documentation for the very asset it contributed;
the supposed quid pro quo – future profit‑sharing – was left largely undocumented; and
the solicitor continued acting for other parties with directly opposed interests throughout the period when security requirements were being negotiated and re‑negotiated.

The judge emphasised that:

legitimate commercial risk‑taking by clients is one thing, but a solicitor’s duty is to ensure each client:
- understands the nature and risks of the transaction; and
- has the opportunity for truly independent advice where interests may diverge.
the fact that parties “wanted the deal done” or were anxious for bank funds is no defence to a conflict‑of‑interest allegation.

The failure to recognise and manage the conflict was not a mere technical oversight but, in the court’s view, a serious and sustained deviation from basic professional obligations.

8.4 No expert evidence required

By analogising to McManus, the judgment firmly states that no expert evidence is required to establish that:

acting in a clear conflict of interest; and
failing to ensure independent legal advice for affected clients;

constitute serious professional shortcomings. These are matters of “self‑evident” importance that every solicitor must be taken to know.

9. Procedural and Evidential Points of Interest

9.1 Full rehearing and the role of new evidence

The appeal’s nature as a full rehearing had several consequences:

Witnesses who had not appeared before the SDT (notably Ms Creighton and Mr O’Connor) could be called and were, in fact, pivotal.
The High Court conducted its own fact‑finding exercise and was free to depart from the SDT’s conclusions.
Parties bear a continuing obligation to litigate fairly:
- the late emergence of the March 2006 attendance note led the court to exclude it on fairness grounds, illustrating the court’s readiness to police procedural fairness even in a de novo setting.

9.2 Hearsay admitted “in the round”

The court’s de bene esse approach to hearsay shows a practical balance between:

the need to understand historical commercial transactions in their full context; and
the protection of fair procedures.

Hearsay about the bank’s instructions and the accountants’ role was:

admitted, given the unavailability of key actors (e.g. Mr Preston) and the supporting documents; but
treated with appropriate caution, mitigated by documentary corroboration.

9.3 Settlement of negligence proceedings: no inference for discipline

The court noted that the Flemings had sued Mr O’Callaghan in professional negligence and that these civil proceedings were settled on a without prejudice to liability basis for €100,000 plus a contribution to costs. However, the judge:

explicitly declined to draw any inference from that settlement for the disciplinary case; and
stressed that:
- civil negligence litigation is conceptually and evidentially distinct from disciplinary proceedings; and
- the reasons for settlement are opaque and may reflect purely pragmatic considerations.

10. Complex Concepts Simplified

10.1 “Professional misconduct”

In plain terms, “professional misconduct” for solicitors means behaviour connected with legal practice that is sufficiently wrong or below standard to warrant disciplinary sanction. Under s. 3 of the 1960 Act (as amended) and the O’Laoire test, this can be:

Dishonest or disgraceful behaviour (e.g. fraud, misappropriating client funds); or
Serious sub‑standard behaviour that falls well below what would be expected of a reasonably competent and ethical solicitor, even if not dishonest (e.g. grave conflicts of interest, chronic non‑compliance with undertakings, serious accounts failures).

10.2 “Tending to bring the profession into disrepute” (s. 3(e))

Conduct “tending to bring the solicitors’ profession into disrepute” is conduct that would reasonably make members of the public or the profession lose confidence in solicitors’ trustworthiness or standards if it were tolerated. It includes:

acts harming particular clients, where the nature of the harm undermines public trust; and
serious system failures or rule breaches that suggest solicitors cannot be relied on to protect their clients’ interests.

10.3 Criminal standard of proof in a disciplinary setting

“Proof beyond reasonable doubt” means the court must be sure of the allegation, to a high degree of certainty. It is a stricter standard than the civil “balance of probabilities” but does not require absolute certainty. In disciplinary cases:

the stakes (including possible strike‑off) justify this high standard;
however, the procedural trappings of a criminal trial (e.g. jury, strict exclusionary rules) do not automatically apply.

10.4 Conflicts of interest

A conflict of interest arises where a solicitor’s duty to act in the best interests of one client conflicts with:

the interests of another client; or
the solicitor’s own interests.

In conveyancing or commercial transactions, examples include:

acting for both buyer and seller where price, timing or conditions are contested;
acting for business partners whose share of profits or risks differ; or
acting for a lender and a borrower with opposed interests in loan conditions.

Professional rules and guidance generally require:

avoiding conflicts where possible;
advising clients to obtain independent representation where conflicts are likely; and
ceasing to act for one or both clients if conflict materialises or cannot be safely managed.

10.5 “De bene esse” and hearsay

To hear evidence de bene esse means the court temporarily admits it (often subject to later argument over admissibility or weight). Hearsay is an out‑of‑court statement relied upon for its truth (e.g. “the bank told me X”) made by someone not called as a witness.

In disciplinary proceedings:

hearsay may be admitted more readily than in criminal trials, provided there is no serious unfairness; and
the court will weigh its reliability carefully, considering:
- whether the maker could have been called;
- whether documents support the statement; and
- whether other evidence contradicts it.

11. Likely Impact and Future Significance

11.1 For solicitors: managing conflicts in transactional work

This judgment is a sharp reminder that:

conflicts of interest in conveyancing and commercial transactions are not a formality but a core professional risk;
a solicitor who acts for multiple parties in complex joint venture or loan‑backed transactions must:
- continually reassess whether their interests remain aligned; and
- document advice given about the need for, or waiver of, independent representation.

In particular, where:

one client is contributing a valuable asset without immediate cash consideration;
the asset’s legal ownership is moved away from that client; and
the quid pro quo consists of future profits or benefits that are not yet formalised;

the safest, and in many cases mandatory, course will be to insist on independent legal advice and to step aside for at least one party if that advice cannot be obtained.

11.2 For the SDT and Law Society: framing charges and proof

The decision clarifies that:

disciplinary charges do not need to hinge solely on a narrative of dishonesty;
“serious falling short” cases should be clearly distinguished from dishonesty allegations, both in pleadings and in argument;
where dishonesty cannot be proved to the criminal standard, tribunals and the court may still consider whether the proven conduct, taken on its own terms, meets the lower (but still serious) threshold of professional misconduct under the second O’Laoire limb; and
careful drafting of Form DT1/DT2 allegations is vital – separating conflict‑of‑interest and standards‑based allegations from fraud/misappropriation where appropriate.

11.3 For appellate practice: interventions on points of law

The case also shows:

the Law Society, even as a notice party, can (and may need to) intervene to correct misstatements of law in appellate submissions, even late in the day; and
the High Court is prepared to adjourn for further submissions to ensure that it applies the correct legal test, rather than deciding on the basis of incomplete legal arguments.

11.4 For the broader law of professional discipline

More generally, O’Callaghan v Nirvanna reinforces several systemic points:

the criminal standard of proof is a meaningful constraint: serious allegations (such as dishonesty or failure to pass on consideration) will fail if reasonable doubt remains;
yet, mismanagement of conflicts can themselves be serious enough to warrant a finding of misconduct, protecting the public and professional reputation even where dishonesty is not shown; and
non‑dishonesty misconduct is not a lesser species; it simply occupies a different place on the spectrum and will primarily affect sanction rather than liability.

12. Conclusion

O’Callaghan v Nirvanna Property Holdings Ltd [2025] IEHC 693 is a carefully reasoned judgment that both narrows and broadens the scope of solicitor discipline:

Narrows, in that the High Court rigorously applied the criminal standard to set aside three serious misconduct findings (including allegations of failure to pass on €250,000 and inadequate professional services) where the factual matrix was uncertain and key witnesses were absent.
Broadens, in that it firmly confirms that:
- professional misconduct does not depend on dishonesty, fraud or moral turpitude; and
- a serious conflict of interest and failure to ensure independent advice, particularly in a transaction transferring a substantial asset out of a vulnerable client’s company, can by itself constitute misconduct under s. 3(e) as conduct “tending to bring the solicitors’ profession into disrepute”.

The judgment also confirms that conflict‑of‑interest duties pre‑dated the 2012 Regulations and are rooted in long‑standing professional principles. Solicitors cannot safely assume that acting for both sides in a complex, high‑value transaction is permissible absent meticulous conflict assessment and documented independent advice.

In sum, the decision stands as a clear precedent that:

dishonesty is not essential for professional misconduct; and
serious unmanaged conflicts of interest are themselves disciplinary wrongs, capable of attracting sanctions up to and including, where appropriate, removal from the Roll.

How severe the sanction should be in this particular case was left for further submissions, but the legal message to the profession is unambiguous: conflicts are not a technicality; they go to the heart of the solicitor’s role as a trusted, independent adviser.