Elsie Taylor v General Legal Council

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton P
• Judgment Date: 11 November 2013
• Neutral Citation: JM 2013 CA 116
• Docket Number: CIVIL APPEAL NO 147/2010
• Date: 11 November 2013

[2013] JMCA Civ 41

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice Mcintosh JA

CIVIL APPEAL NO 147/2010

Between

Elsie Taylor

Appellant

and

The General Legal Council

Respondent

Joseph Jarrett instructed by Joseph Jarrett & Co for the appellant

John Vassell QC and William Panton instructed by DunnCox for the respondent

LEGAL PROFESSION - Disciplinary proceedings - Professional misconduct - Suspension from practice for one (1) year - Legal Profession (Canons of Professional Ethics) Rules 1978

Panton P

Introduction

1 On 18 January 2013, we dismissed the appeal herein, affirmed the order of the General Legal Council and awarded costs to the respondent, to be agreed or taxed.

2 The appeal was against a decision of the disciplinary committee of the General Legal Council (‘the disciplinary committee’) made on 30 October 2010 whereby the appellant was found guilty of professional misconduct. The order of the disciplinary committee was in the following terms:

• ‘(i) The Respondent is guilty of professional misconduct having breached Cannons I (b), VI (a) and VIII (b) of the Cannons [sic] of the Legal Profession (Cannons [sic] of Professional Ethics) Rules, 1978.

• (ii) The Respondent is ordered to pay to Messrs, Nunes, Scholefield, Deleon & Co. for the account of Mr. and Mrs. Patrick Anderson, the sum of $151,500.00 with interest thereon at the rate of 15% per annum from May 7, 1992 to the date of payment.

• (iii) The Respondent is suspended from practice as an Attorney-at-Law entitled to practice in the Courts of Jamaica for a period of one (1) year from the date of this order.

• (iv) The costs of these proceedings fixed in the sum of $200,000.00 are to be paid by the Respondent $100,000.00 of which is to be paid to the Complainant and $100,000.00 to the General Legal Council.’

The Canons

3 The relevant canons are as follows:

I (b) ‘An attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behavior which may tend to discredit the profession of which he is a member.’

VI (a) ‘An Attorney's conduct towards his fellow Attorneys shall be characterized by courtesy and good faith and he shall not permit ill-feeling between clients to affect his relationship with his fellow Attorneys or his demeanour towards the opposing party.’

VIII (b) ‘Where in any particular matter explicit ethical guidance does not exist, an Attorney shall determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.’

The complaint

4 The complaint against the appellant was laid as far back as 30 July 1998 by Mr Patrick Brooks, who is now a judge of appeal, but was then a partner in the law firm of Messrs Nunes, Scholefield, DeLeon & Co. The complainant filed an affidavit in support of his complaint which was that:

‘…neither Mrs Taylor nor A. Freddie Brown & Co. have sought to explain what has occurred with the deposit paid to Mrs. Taylor or to set out the status of Mr. & Mrs. Anderson in respect of the said land and my requests to Mrs. Taylor have gone unanswered.’

The factual background

5 In his affidavit supporting the complaint, the complainant stated that in 1992, he acted on behalf of the purchasers, Patrick and Diana Anderson, in respect of an agreement for sale whereas the appellant acted on behalf of the vendor. The complainant alleged that by letter dated 22 April 1992, on the appellant's letterhead, the appellant sent him the draft agreement for sale for execution by the purchasers. The letter reads thus:

‘Re: Sale of Lot 16 Belgrade Heights, Havendale, Kingston 19 — B.A. Watkis to Patrick Anderson et ux

Find enclosed Agreement for Sale in duplicate for execution by your client after your perusal [sic].

The Title to this Lot will be ready within the time specified.

Intrastruture [sic] to this Sub-Division is already well under way and will soon be completed. Copy of the Parent Title is also enclosed.

Yours faithfully, ELSIE A. TAYLOR

Per:

Elsie A. Taylor (Mrs.)’

6 The agreement for sale was amended and duly executed by the purchasers and returned under cover letter dated 29 April 1992 to the appellant at her address at 60 Laws Street, Kingston. A cheque in the sum of $150,000.00 representing the deposit was also sent to the appellant under cover letter dated 1 May 1992. By letter dated 5 May 1992, the appellant informed the complainant that she was in possession of an instrument of transfer that had been duly signed by the vendor, Mr Bertram Watkis. By the said letter, the appellant sent to the complainant a photocopy of the agreement for sale which was signed on behalf of the vendor by Mel Brown & Company as agents for the vendor.

7 The complainant further alleged that between 5 May 1992 and 5 April 1993, he wrote eight letters to the appellant and made several telephone calls in respect of the said agreement for sale. On the latter date, the complainant sent to the appellant a copy of a notice, dated the said day, requiring completion of the sale agreement. Due to a failure to complete the sale, the complainant ‘caused a suit to be filed against the Vendor for specific performance of the Agreement for Sale’.

8 The vendor, in his defence to the action, denied that he had entered into the agreement or had authorized any person to sign an agreement for sale on his behalf in respect of the said land. On 16 October 1997, the complainant wrote to the appellant informing her of the vendor's position and sought clarification on the matter. The letter reads:

‘We write to inform you that we have filed a Writ against Mr. Watkis claiming Specific Performance of the Agreement for Sale in the captioned matter.

Mr. Watkis has through Ms. Marina Sakhno filed an Appearance to the Writ and has denied knowledge of:-

• (a) Messrs. Brown & Co., acting as his agents for the purposes of the sale, and,

• (b) anything concerning a sale to Mr. & Mrs. Anderson.

Interestingly, Ms. Sakhno has alleged that in an Affidavit filed by you in Suit No. W. 114/96 you disclosed to the Court what was said to be all the Agreements in which you acted for Mr. Watkis and that this Agreement was not included in those listed. We are completely baffled by that allegation concerning:-

• (a) the correspondence in this matter between you and us since April, 1992;

• (b) the deposit being paid to you;

• (c) the undertaking for the payment of the balance of the purchase price being made to you by the Bank of Nova Scotia Jamaica Limited.

We therefore ask for your explanation of the situation within seven (7) days of the date hereof.’

This letter was copied to all the relevant parties. It prompted a response from the appellant by way of a letter dated 31 October 1997, which was copied to the General Legal Council. It reads thus:

‘We refer to your letter dated 16 ^th October, 1997 on the captioned matter.

As far as the writer hereof is aware Mr. Watkis had signed over completed Agreements for Sale and signed Transfer to Mr. A. Freddie Brown, Attorney-at-Law for two (2) lots at Belgrade Manors including Lot 16. If these lots were sold subsequently they were not sold by me or anyone on my behalf.

We attach hereto a copy letter addressed to you from Mr. A. Freddie Brown which informed you that he had Carriage of Sale for Lot 16.

All correspondence from the Bank of Nova Scotia were passed over to A. Freddie Brown, Attorney-at-Law who had the Carriage of Sale for Lot 16.

We also attach hereto copy letter regarding the subdivision which was sent to you by Mr. A. Freddie Brown.

We regret the delay in responding to your letter.’

9 The letter from A Freddie Brown to the complainant, mentioned in the appellant's response above, informing that he had carriage of sale of the land was dated 20 March 1996 and reads as follows:

‘In response to the above, I am the Attorney-at-Law, A. Freddie Brown, who is responsible for Lot 16 Title due to Mr. Patrick Anderson.

We had difficulty getting final approval for this sub-division. However, it has now been approved, and Mr. Richard Haddad, the Commissioned Land Surveyor is preparing the pre-check Plan which will be forwarded to the Titles Office soon by Mrs. Elsie Taylor, the Attorney-at-Law responsible for splintering the Title.

In a short while Title will be ready.’

10 In response to the letters from the appellant and A Freddie Brown, the complainant, on 4 November 1997 wrote thus to the appellant:

‘We have your letter of October 31, 1997.

Your letter fails to acknowledge that you had carriage of sale since 1992 and that the deposit was paid to you.

We are obliged to ask you specifically:-

• (a) whether the Agreement for Sale was stamped for the sum representing stamp duty and transfer tax;

• (b) whether the letters of April 22, 1992 and 5 ^th May, 1992 (copies attached) were prepared in your office;

• (c) whether the said letters were issued from your office with your authority;

• (d) what you did with the sum of $150,000.00 paid to you on account of this Agreement.

Your continued insistence of ignorance of this matter is, frankly, very frightening considering the level of correspondence between us (including telephone conversations between yourself and the undersigned) and needs some prompt forthright clarification from you.

We wish to point out that the letter from A. Freddie Brown to us is dated March 20, 1996. Our first contact with you was in April, 1992.

We are genuinely quite puzzled by your position and need your explanation.’

This letter was copied to Mr and Mrs Patrick Anderson, Mel Brown, Freddie & Company and A Freddie Brown & Co.

11 Based on the correspondence from the attorneys-at-law, the complainant formed the view that he and his...