Don O Foote v General Legal Council

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,Edwards JA,Simmons JA,Mcdonald-Bishop JA
• Judgment Date: 05 November 2021
• Neutral Citation: JM 2021 CA 120
• Docket Number: MISCELLANEOUS APPEAL NO COA2019MS00010
• Court: Court of Appeal (Jamaica)

[2021] JMCA Misc 2

IN THE COURT OF APPEAL

BEFORE:

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice Edwards JA

The Hon Miss Justice Simmons JA

MISCELLANEOUS APPEAL NO COA2019MS00010

Between

Don O Foote

Appellant

and

General Legal Council

Respondent

Abraham Dabdoub, Douglas Thompson and Able-Don Foote instructed by Douglas Thompson for the appellant

Mrs Sandra Minott-Phillips QC and Lithrow Hickson instructed by Myers, Fletcher & Gordon for the respondent

McDonald-Bishop JA

1 I have read, in draft, the judgment of Edwards JA. I agree with her reasoning and conclusion, and there is nothing that I could usefully add.

Edwards JA

Introduction

2 This is an appeal brought by Mr Don O Foote (‘Mr Foote’) against the decision and orders of the Disciplinary Committee of the General Legal Council (‘the Committee’) made on 20 July 2019 and 23 November 2019, respectively. The Committee found him guilty of professional misconduct and struck him from the roll of attorneys-at-law entitled to practice in the island of Jamaica. This decision was arrived at by the Committee after hearing a complaint brought against Mr Foote by his client, Ms Janet Russell (‘Ms Russell’). Having found Mr Foote guilty of professional misconduct, the Committee ordered that:

“1. [Mr Foote] shall be struck from the roll of Attorneys entitled to practice in the several courts of Jamaica.

2. He will pay the sum of Two Million Three Hundred and Thirty Three Thousand Three Hundred and Thirty Three Dollars and Thirty Three Cents ($2,333,333.33) as restitution to the Complainant.

3. He will pay costs to the General Legal Council in the amount of One Hundred Thousand Dollars ($100,000.00)”.

3 I will now look briefly at the circumstances which led to that result.

Summary of the facts

4 In 2006, Ms Russell filed, in the Supreme Court of Jamaica, a claim of negligence against the defendant, who was her former dentist. As the case meandered through the courts, Ms Russell, for various reasons, changed several attorneys in her quest for compensation from the defendant for the injuries she sustained. At some point, she settled on Mr Foote, a very senior lawyer licensed to practice in the courts of Jamaica. Ms Russell signed a contingency agreement with Mr Foote, in which she agreed that he was entitled to a one-third contingency fee of any settlement sum arrived at on her behalf, and that any expenses advanced on the case was to come from her two-thirds of the settlement. Eventually, Mr Foote successfully negotiated a settlement, on her behalf, with the attorneys-at-law representing the defendant. This settlement was for $23,000,000.00, being $21,000,000.00 in full settlement of the claim, and $2,000,000.00 for legal costs. This settlement obviated the need for a trial, and a notice of discontinuance was filed by Mr Foote on 19 July 2012.

5 However, peculiarly, Mr Foote claimed that he gave Ms Russell two release and discharge documents to sign. In one of those documents, the settlement figure was stated to be $16,000,000.00, and in the other, the settlement figure was stated to be $23,000,000.00. Mr Foote alleged that Ms Russell had signed them both, on the same day, before the same Justice of the Peace. Ms Russell denied knowing anything about a $23,000,000.00 settlement prior to her complaint to the General Legal Council (‘the GLC’), and denied signing any document headed ‘release and discharge’ with that figure or at all.

6 According to Ms Russell, she did not know that a settlement had been reached until 30 November 2012, when she was given a letter by Mr Foote, outlining that a settlement had been arrived at in the sum of $16,000,000.00, and that her two-thirds of the settlement, after the contingency fee was extracted, amounted to approximately $10,666,666.70. That letter also enclosed a cheque in that amount, for which Ms Russell was to sign as received. She did so. Mr Foote, a few months thereafter, borrowed $7,000,000.00 of that sum from Ms Russell, which he agreed to repay over a period of six months, with interest. The loan was not repaid on time and Ms Russell claimed that it was Mr Foote's tardiness in keeping to the timeline for repayment of the loan, and his conduct towards her as a result, which initially aroused her suspicions as to the exact amount of the settlement he had received on her behalf. As a result, on 11 November 2013, she wrote to Mr Foote requesting a copy of the settlement agreement and a document that she had signed in his office in the presence of a Justice of the Peace. This was not forthcoming from Mr Foote, who responded by letter citing the confidentiality clause in the release and discharge document, which he claimed Ms Russell's spouse, Mr Salmon, had been shown.

7 Ms Russell, thereafter, embarked on what can only be described as a fact-finding mission, which took her to the registry of the Supreme Court, sometime in November 2013. At the registry, she discovered that the settlement agreement had not been filed, it being an out of court settlement, but that the case had been discontinued from 19 July 2012. Since the letter attached to her settlement cheque from Mr Foote had indicated that the settlement was arrived at in November 2012, she was astute enough to recognise that the case would not have been discontinued in July before a settlement was reached in November.

8 On 13 December 2013, Mr Foote provided Ms Russell with a copy of an undated release and discharge document for a settlement sum of $16,000,000.00, which contained a confidentiality clause that prohibited the terms of the settlement from being publicly disclosed. Ms Russell's suspicions were further aroused as, although she recognised her signature on the document, the first page did not look like the document she had signed in Mr Foote's office prior to the settlement. As a result of this, she requested that Mr Foote provide her with a copy of the settlement agreement and a statement of account, but again, this was not forthcoming. Instead of furnishing the document and a statement of account, as requested by Ms Russell, Mr Foote cited the confidentiality clause contained in the release and discharge document, which he told her prevented the disclosure of the settlement sum.

9 Concerned about this discrepancy, as well as Mr Foote's behaviour towards her and his non-responses to her enquiries, Ms Russell set about doing further, and what I would describe as, detective work. One of the several steps she took was to seek the assistance of an attorney-at-law, whom I will refer to as ‘CB’, to get a copy of the original settlement agreement, as Mr Foote had adamantly refused to furnish her with it.

10 Acting on Ms Russell's instructions, CB wrote twice to Mr Foote, first in January and then in February 2014, seeking clarity on the date of discontinuance, date of the settlement and the payment sum. He also requested a copy of the settlement agreement and a full accounting of all monies collected on Ms Russell's behalf, dates collected, withdrawals made and for what. This request was met with, what can be safely described as, a somewhat trenchant response from Mr Foote. He failed to provide the documents requested or the accounting but instead sought to characterise Ms Russell as ungrateful and unconscionable.

11 Not being deterred, and having previously written to the GLC seeking its intervention, Ms Russell filed a formal complaint to the GLC on 19 November 2014, against Mr Foote, supported by an affidavit and later, a supplemental affidavit. At a hearing of the matter before a panel of the Committee on 5 March 2016, Mr Foote was directed to provide a statement of account for the settlement sum he received on behalf of Ms Russell. In compliance with that order, Mr Foote, by way of letter dated 17 March 2016, sent Ms Russell a statement of account for the sum of $16,000,000.00.

12 What happened next forms the gravamen of the case. Ms Russell's then attorney, CB, obtained and sent to her, by letter dated 22 April 2016, a copy of the release and discharge document, with her signature, which was sent to him by the defendant's attorney in the civil suit. That release and discharge document reflected a settlement sum of $23,000,000.00.

13 Ms Russell's next move was to secure the services of another attorney-at-law from a firm, which I will refer to as ‘GTS’, to recover from Mr Foote, the remaining $7,000,000.00 from the $23,000,000.00 settlement. Mr Foote, having been written to by an attorney from GTS, responded with a letter, the contents of which I will expose later in this judgment. The result of it, however, is that Mr Foote, having claimed to have been entitled to the $7,000,000.00 as reimbursement for expenses and disbursements made on behalf of Ms Russell, eventually returned $5,322,172.50 to Ms Russell, through GTS.

14 Mr Foote was brought before the GLC, by Ms Russell, to answer a complaint of breaches of the following Canons:

1. Canon VII(b)(ii) which states that “an attorney shall account to his client for all monies in the hands of the Attorney for the account or credit of the client, whenever reasonably required to do so”; and

2. Canon I(b) which states that “an attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member”.

15 Mr Foote filed an affidavit at the GLC in response to Ms Russell's initial affidavit. He also filed an affidavit of the Justice of the Peace, who he claimed had witnessed the execution, by Ms Russell, of two discharge and release documents. He did not file an affidavit in response to Ms Russell's further affidavit.

16 The statement of account filed by Mr Foote, at the instance of the GLC, accounted for $16,000,000.00 only. No statements of account were ever filed in respect of the $23,000,000.00 or for the $7,000,000.00,...