Don Foote v The General Legal Council

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Straw, J.A.,Harris, J.A.,G Fraser, J.A.
• Judgment Date: 25 July 2025
• Neutral Citation: JM 2025 CA 55
• Year: 2025
• Docket Number: COA2018MS00002

Don Foote

and

The General Legal Council

Straw, J.A.; Harris, J.A.; Fraser, J.A. (Ag.);

COA2018MS00002

Court of Appeal

Appearances:

Douglas Leys KC for the appellant

Mrs. Sandra Minott-Phillips KC, Litrow Hickson and Jamaiq Charles instructed by Myers, Fletcher & Gordon for the respondent

JUDGMENT OF THE COURT

Straw, J.A.

1 I have read, in draft, the judgment of V Harris, J.A. I agree with her reasoning and conclusion and have nothing to add.

Harris, J.A.

2 This is an appeal by Mr. Don Foote, an attorney at law, against the decision and sanction of the Disciplinary Committee of the General Legal Council (‘the Committee’) given on 11 April 2017. By that decision, the Committee found that Mr. Foote's conduct tended to discredit the legal profession of which he is a member and amounted to inexcusable or deplorable negligence in the performance of his duties in breach of Canons I(b) and IV(s) of the Legal Profession (Canons of Professional Ethics) Rules (‘the Canons’), respectively.

3 On 23 February 2018, pursuant to section 12(4) of the Legal Profession Act (‘the LPA’), Mr. Foote was fined $1,000,000.00, which was to be paid to Miss Amy Robinson, the complainant in the disciplinary proceedings (‘the complainant’), on or before 24 May 2018, failing which he would be suspended from practice for one year. Mr. Foote was also ordered to pay costs of $100,000.00 to the complainant and $100,000.00 to the General Legal Council (‘the GLC’) on or before 24 May 2018.

4 The substantial issue in this appeal is whether the Committee erred when it found that Mr. Foote had breached Canon IV(s) in circumstances where the complaint was made by a third party. This question arose because Mr. Foote, having joint carriage of sale of a property (subject to a court-ordered sale), represented one of the co-owners and did not have an attorney-client relationship with the other co-owner (the complainant), who was represented by another attorney at law. Before addressing this issue, a brief outline of the factual background is required to provide the context of the appeal.

FACTUAL BACKGROUND

5 The factual background of this matter has been helpfully summarised in the Committee's decision and is gratefully adopted with a few modifications.

6 The complainant and her former husband, Mr. Dorrel Saunders, are owners of premises known as Lot 10, Emmaville, located at Smithville, in the parish of Westmoreland, registered at Volume 1081 Folio 237 of the Register Book of Titles (‘the property’). Initially, they held the property as joint tenants. On 11 March 2010, by order of a judge of the Supreme Court, the joint tenancy was severed, and it was declared that they were each entitled to a half share in the property as tenants in common. It was further ordered, among other things, that there be a sale of the property and the net proceeds be distributed equally between the complainant and Mr. Saunders.

7 Subsequently, Mr. Foote drafted an agreement for sale which was signed by the complainant (on 15 October 2010) and Mr. Saunders as joint vendors (‘the proposed agreement’). The prospective purchaser was Mr. Henry Moo Young (now deceased). He did not sign the proposed agreement.

8 Some key terms of the proposed agreement included that the purchase price was $9,500,000.00, the purchaser was to pay a deposit of $1,425,000.00 to the “Vendors Attorney at law as stakeholders [sic]” on the signing of the proposed agreement, possession would be given on completion, and that Mr. Foote (who represented Mr. Saunders) and Ms. Vonique R Mason (representing the complainant) had joint carriage of sale. The clause concerning completion was as follows:

“COMPLETION: On or before the expiration of Ninety (90) days From the date [presumably of the signing of the agreement] and on payment of the balance purchase price in exchange for [the] Duplicate Certificate of Title registered in the name of the Purchaser as the registered proprietor.” (Emphasis as in original)

9 The catalyst for the disciplinary proceedings against Mr. Foote arose in this way. Sometime in December 2010, a family member informed the complainant that construction work was being done on the dwelling house located on the property. As it turned out, this was done without her knowledge and consent, as well as before Mr. Moo Young had paid the full amount of the deposit and signed the proposed agreement. Consequently, on the complainant's behalf, Ms. Mason wrote to Mr. Foote on 12 January 2011, following a telephone conversation between them, formally requesting the fully executed agreement for sale and a detailed update concerning the progress of the sale of the property. In that letter, Ms. Mason also stated:

• “3. We express our disappointment over the unprofessional manner in which your firm has handled this sale to date. At no point did your [sic] seek our client's permission before you put the purchaser in possession of the property, knowing full well that the sale has not been concluded and that, in so doing, you are in breach of the terms of the contract.

• 4. We take the opportunity to remind you that although your firm has carriage of this sale, there are two Vendors involved. You act on behalf of one, and we act on behalf of the other.

• 5. In future, please ensure that we are kept abreast of All matters concerning this sale.” (Emphasis as in the original)

Mr. Foote did not respond to this letter.

10 Another letter from Ms. Mason followed on 24 January 2011, indicating the complainant's instructions to have Mr. Moo Young vacate the property, failing which she wished to rescind the proposed agreement, given that he was in breach of its terms. Disappointment about Mr. Foote's handling of the sale was again expressed. There was no response from Mr. Foote.

11 Undeterred, Ms. Mason again wrote to Mr. Foote on 16 February 2011, stating that the complainant had instructed her to inform him that she wished to rescind the proposed agreement with immediate effect. This final letter ignited a response from Mr. Foote on 1 March 2011. Given the importance of the contents of this letter to the Committee's findings and ultimately to the outcome of the appeal, it will be set out below in part:

“I resent the tone of paragraph [sic] 1–3 of your letter to me of the 12th January 2011 and wish to reply as follows that:

• (1) [The complainant] abandoned the property, the subject matter of this suit/sale, over 14 years ago.

• (2) Having left the property in 1996, she made no financial contribution for [sic] the maintenance and upkeep of same, which since then has been the sole responsibility of my client (Mr. D. Saunders).

• (3) Over the years and since the divorce of our clients, there has [sic] been consistent attempts by [the complainant] to frustrate the voluntary sale of the property leading up to the Consent Agreement approved by Mangatal, J. on the 11th March 2010 To sell the said property.

• (4) After many attempts, there is now a signed Agreement for Sale with a purchaser who (having made an offer well over one year) was about to withdraw his offer to purchase the said property, which Was being rapidly depreciated and vandalised.

• (5) Upon my client's (Mr. Saunders') proposal to relieve his hardship/responsibility of solely maintaining the property And to save the sale at the original price, the purchaser was put into possession.

• (6) Enclosed please find copy letter dated 8th October 2010 to me from Mr. Saunders expressing his difficulties and which form the basis of my putting the purchaser into possession.

• (7) May I point out to you that it is not within [the complainant's] power to Rescind the sale of this property, which Mangatal, J. ordered to be sold.

[The complainant's] only interest in the property is in the proceeds of sale when completed on or before the 30th May 2011.

Kindly advise her accordingly. …” (Emphasis as in the original)

12 On 29 March 2011, the complainant's Attorneys at Law responded to that letter, pointing out that they had not yet received a copy of the executed agreement for sale. The complainant's attorneys voiced their concerns about Mr. Moo Young being placed in possession before completion and being allowed to make extensive renovations to the property without the complainant's knowledge or consent. They also made enquiries about whether an attorney at law represented Mr. Moo Young and, if so, who that attorney was, and requested an immediate cancellation of the sale and cessation of renovations being carried out on the property by Mr. Moo Young. Mr. Foote was also advised that the complainant, in the light of his handling of the sale and his failure to respond to her enquiries, had lodged a complaint against him with the GLC.

13 A notice requiring completion of the sale, dated 9 May 2011, was subsequently served on Mr. Moo Young. The complainant also commenced proceedings against him in the Supreme Court on 31 August 2011, for, among other things, damages for breach of contract. The record of appeal does not contain any further information about those proceedings.

THE PROCEEDINGS BEFORE THE COMMITTEE

14 The complainant filed a “Form of Application against an Attorney at Law”, supported by an affidavit sworn on 13 June 2011 and a further affidavit sworn on 10 December 2012 in which she alleged that Mr. Foote had acted with inexcusable or deplorable negligence in the performance of his duties, failed to maintain the honour and dignity of the profession and that his behaviour tended to discredit the profession.

15 The gravamen of the complaint was that, without her knowledge and consent, Mr. Foote permitted Mr. Moo Young to have early possession of the property before he had paid the deposit in full and signed the proposed agreement, as well as allowing him (Mr. Moo Young) to carry out “irreversible structural alterations” to the property in breach of the terms of the proposed agreement.

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