Angella Smith v The General Legal Council

• Jurisdiction: Jamaica
• Judge: Edwards JA,Simmons JA,Laing JA
• Judgment Date: 26 May 2023
• Neutral Citation: JM 2023 CA 62
• Docket Number: MISCELLANEOUS APPEAL NO COA2021MS0002
• Court: Court of Appeal (Jamaica)

Between

Angella Smith

Appellant

and

The General Legal Council

1 ^st Respondent

and

Fay Chang Rhule

2 ^nd Respondent

[2023] JMCA Misc 2

Before:

THE HON Miss Justice Edwards JA

THE HON Miss Justice Simmons JA

THE HON Mr Justice Laing JA (AG)

MISCELLANEOUS APPEAL NO COA2021MS0002

IN THE COURT OF APPEAL

Professional misconduct and negligence — alleged breaches of Canon 1(b) and Canon IV(s) of the Legal Profession (Canons of Professional Ethics) Rules — duty of an attorney-at-law when acting for the donee of a power of attorney — significance of risk factors — Scope of the attorney-at-law's duty to act in accordance with the standards of the profession

Appeal — Powers of the appellate court when considering an appeal from the Disciplinary Committee — Sections 16(1) and 17 of the Legal Profession Act; Disciplinary Committee (Appeal Rules) 1972

Appearances:

Lemar Neale instructed by NEA|LEX for the appellant

Mrs Sandra Minott-Phillips KC and Jahmar Clarke instructed by Myers Fletcher & Gordon for the 1 ^st respondent

Mrs Caroline Hay KC and Mrs Tereece Campbell-Wong for the 2 ^nd respondent

Edwards JA

1 I have read in draft the judgment of Laing JA (Ag). I agree with his reasoning and conclusion and have nothing to add.

Simmons JA

2 I too, have read the judgment of my learned brother Laing JA (Ag). I agree with his reasoning and conclusion and have nothing useful to add.

Laing JA (AG)

3 This is an appeal by Angella Smith (‘the appellant’) against the decision of the Disciplinary Committee of the General Legal Council (‘the Committee’), on 13 January 2021, that Fay Chang Rhule, an attorney-at-law (‘the second respondent’) had not breached Canon 1(b) of the Legal Profession (Canons of Professional Ethics) Rules (‘LPR’).

The background

4 The appellant and Denton Mckenzie (‘Mr McKenzie’) were married on 17 November 1990. In 1994, they became registered as joint proprietors of property situated at lot 393, Charlemont, in the parish of Saint Catherine, registered at Volume 1250 Folio 215 of the Register Book of Titles (‘the property’). The property was subject to a mortgage held by the Victoria Mutual Building Society (‘VMBS’).

5 In 2011, Carolyn Alexander (‘Ms Alexander’), with whom Mr McKenzie shared an intimate relationship, engaged the second respondent in relation to the sale of the property, and presented to her, a power of attorney signed by Mr McKenzie, as the donor, and dated 6 March 2011 (‘Mr McKenzie's power of attorney’). That power of attorney authorized Ms Alexander to act as the vendor for the sale of the property. Having researched the title at the National Land Agency, the second respondent discovered that the appellant was a co-owner of the property, as a joint tenant. This prompted her to make enquiries of Ms Alexander who told her that both owners of the property were incarcerated in Canada. The second respondent was then later, provided with a power of attorney (‘the appellant's power of attorney’) purported to have been made in favour of Ms Alexander by the appellant, as donor. There was no evidence as to how long after the fact of the appellant's ownership was raised, that the appellant's power of attorney was produced to the second respondent by Ms Alexander, but it was dated 21 November, 2011.

6 The second respondent conducted the sale of the land and paid the proceeds to Ms Alexander. The appellant made a complaint to the General Legal Council that she had not signed the appellant's power of attorney or consented to the sale of the property, and that the second respondent had breached Canon I(b), by acting pursuant to the appellant's powers of attorney.

The proceedings

7 The appellant averred in her affidavit in support of the complaint, sworn on 12 June 2015, and which was before the Committee, that she never gave Ms Alexander the appellant's power of attorney and that the signature and handwriting purporting to be hers, were not hers. Mr McKenzie by his affidavit, sworn on 30 April 2015, also denied having signed a power of attorney in favour of Ms Alexander. He deponed that he received a sentence of five years' imprisonment in 2009 and was serving his sentence up to the time of making his affidavit.

8 The appellant sought to call two witnesses to give expert evidence on handwriting. The Committee conducted a voir dire to determine whether the two witnesses would be accepted as expert witnesses. The Committee ruled that neither witness was qualified to be an expert witness.

9 The second respondent, in her affidavit sworn on 31 August 2015, asserted that both powers of attorney were signed and sealed by a duly commissioned notary public. Accordingly, she acted in accordance with the instructions given to her by her client Ms Alexander, completed the sale of the property, and disbursed the proceeds of the sale to her.

10 The Committee considered the following issues:

• “1. What is the duty of an attorney-at-law in relation to acting on the instruction of a donee of a Power of Attorney in a Real Estate transaction?

• 2. Whether on a true construction of [the appellant's power of attorney] did the Attorney act outside the power granted in the disbursement of the proceeds?

• 3. Whether in the circumstances the attorney's conduct in relying on [the appellant's power of attorney] without more to conclude the sale and disburse the proceeds as she did, means that she is guilty of professional misconduct.”

11 In respect of the first issue, the Committee concluded that based on the statutory framework, an attorney when reviewing a power of attorney has a duty to determine whether it is satisfactory for the purposes of the transaction (its substance) and whether its execution is in the form required by the laws of Jamaica (its form). If attorneys during the course of their practice, satisfy themselves as to the substance and form of the power of attorney, then in the absence of any risk factors, no further duty would arise.

12 In respect of the second issue, the Committee noted that the powers of attorney do not include an expressly stated power of the donee to engage an attorney or to receive the proceeds of the sale of the property. Nevertheless, the Committee was persuaded by the principle stated in Halsbury's Law of England Volume 1 (2008) at para. 31 which is expressed in the following terms:

“A power to complete all contracts which the donee may deem necessary for a specific object, however, includes authority to obtain money for payment in respect of such contracts, where the payment is necessary and incidental to the completion.”

The Committee held that the disbursement of the proceeds of the sale of the property in the circumstances presented, would necessarily be incidental to the completion of the transaction.

13 Having regard to its findings in respect of issues one and two, the Committee at page 13 of the decision arrived at the following conclusion:

“In conclusion therefore, we find that the attorney in reviewing the power of attorney satisfied herself that in form and substance the statutory requirements of the laws of Jamaica, were complied with. There was not on the face of the document or the circumstance that arose, sufficient risk factors that would cause her to have a duty to enquire further into the authenticity of the power. The attorney therefore, would not have been guilty of inexcusable or deplorable negligence in acting on the power nor would her action be considered behaviour which did not maintain the honour and dignity of the profession of [sic] discredit the profession of which she is a member.”

The statutory basis for the appeal to this court

14 Section 16(1) of the Legal Profession Act (‘ LPA’) provides that an appeal against any order made by the Committee under that act shall lie to the Court of Appeal by way of rehearing. Section 17 which provides for this court's powers is in the following terms:

“17.–(l) The Court of Appeal may dismiss the appeal and confirm the order or may allow the appeal and set aside the order or may vary the order or may allow the appeal and direct that the application be reheard by the Committee and may also make such order as to costs before the Committee and as to costs of the appeal, as the Court may think proper:

Provided that in the rehearing of an application following an appeal by the attorney no greater punishment shall be inflicted upon the attorney concerned than was inflicted by the order made at the first hearing.

(2) Where the Court of Appeal confirms the order (whether with or without variation) it shall take effect from the date specified in the order made by the Court of Appeal confirming it.”

15 The Disciplinary Committee (Appeal Rules) 1972, provides that an appeal to the Court of Appeal, shall be by way of a re-hearing. It provides at section 11 that the Court of Appeal Rules (‘the CAR’) apply to appeals under sections 16 or 18 of the Legal Profession Act, insofar as they do not conflict with the Disciplinary Committee (Appeal Rules) 1972. Section 18 which deals with restoration of the name of an attorney to the roll is not relevant for these purposes. The Disciplinary Committee Appeal Rules 1972, in rule 4(2) and (3), provide that:

“Except with the leave of the Court the appellant shall not be entitled on the hearing of an appeal to rely upon any grounds of appeal not specified in the notice of appeal.

(3) The Court may give leave to amend the notice and grounds of appeal upon such terms as may be just.”

The grounds of appeal

16 Mr Neale, for the appellant, was granted leave to amend the original grounds of appeal and to argue the following amended grounds of appeal filed on 17 May 2021:

“a. The learned panel of the Disciplinary Committee of the General Legal Council, having properly directed itself on the law, erred in ruling after a Voir Dire that neither of the two proposed expert witnesses intended to be called by the...