Jones (Sonia) v The General Legal Council

JurisdictionJamaica
CourtCourt of Appeal
Judge DOWNER, J.A. , PANTON, J.A. , COOKE J.A. (Ag.)
Judgment Date21 May 2003
Neutral CitationJM 2003 CA 21
Judgment citation (vLex)[2003] 5 JJC 2103
Date21 May 2003
IN THE COURT OF APPEAL
BEFORE:
THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE COOKE J.A. (Ag.)
BETWEEN:
SONIA JONES
APPELLANT
AND:
THE GENERAL LEGAL COUNCIL
RESPONDENT
Donald Scharschmidt Q.C. instructed by Gresford Jones for the Appellant
Patrick Brooks for the Respondent

LEGAL PROFESSION - Disciplinary proceedings - Suspension from practising as attorney-at-law - Order for payment of specific sum - Leave to appeal pursuant to Legal Profession Act, s. 16 - Whether the findings of the Tribunal were unreasonable - Whether there was a proper basis for an award of compensation

DOWNER, J.A.

ORDER

Appeal dismissed. Order of the Disciplinary Committee affirmed. Costs to the respondent to be taxed if not agreed.

DOWNER, J.A.
1

Introduction

2

The Disciplinary Committee of the General Legal Council made the following orders on 15 TH December, 1999, against Attorney-at-Law Sonia Jones (the "appellant"):

  • (i) Pursuant to section 12(4)(a) of the Legal Profession Act the Respondent is suspended from practice for a period of nine months from the date of this Order

  • (ii) Pursuant to section 12(4) (c) of the Legal Profession Act the Respondent is to pay the sum of One Hundred and Fifty Thousand Dollars ($150,000.) by way of restitution, such sum to be collected by the General Legal Council and paid over to the complainant

  • (iii) The Respondent is to pay the complainant's costs in the sum of Fifteen Thousand Dollars ($15,000).

3

The orders were made pursuant to section 12(4) of the Legal Profession Act. There does not appear to have been any stay of execution with respect to these orders.

4

It is pertinent to set out the relevant sections of the Legal Profession Act (the "Act") which empowered the Disciplinary Committee to make the aforesaid orders. Section 12(1) reads:

"12.-(1) Any such person alleging himself aggrieved by an act of professional misconduct (including any default) committed by an attorney may apply to the Committee to require the attorney to answer allegations contained in an affidavit made by such person, and the Registrar or any member of the Council may make a like application to the Committee in respect of allegations concerning any of the following acts committed by an attorney, that is to say-

  • (a) any misconduct in any professional respect (including conduct which, in pursuance of rules made by the Council under this Part, is to be treated as misconduct in a professional respect);

  • (b) any such criminal offence as may for the purposes of this provision be prescribed in rules made by the Council under this Part."

5

Then 12(4) reads:

"(4) On the hearing of any such application the Committee may as they think just make any such order as to -

  • (a) striking off the Roll the name of the attorney to whom the application relates, or suspending him from practice on such conditions as they may determine, or imposing on him such fine as they may think proper, or subjecting him to a reprimand;

  • (b)the payment by any party of costs or of such sum as they may consider a reasonable contribution towards costs;

  • (c)the payment by the attorney of any such sum by way of restitution as they may consider reasonable."

6

The appellant was aggrieved by the orders made against her, so she has appealed to this Court pursuant to section 16 of the Act. Her grounds of appeal were as follows:

"The findings and each of them are against the weight of the evidence and .are unreasonable, is no proper basis for the award of compensation and or costs to the Complainant."

7

The charges stated in the Notice and Grounds of Appeal against the appellant were:

  • "1. The appellant has breached Canon IV(r) in that she has failed to deal with her client's business with all due expedition.

  • 2. Also in breach of Canon IV(r), the Appellant has failed to provide her client with all information as to the progress of his business with all due expedition despite being reasonably required to do so.

  • 3. The Appellant has breached Canon IV(s) in that, in the performance of her duties, the Appellant has acted with inexcusable or deplorable negligence or neglect.

  • 4. The Appellant, has breached Canon VII (b) (ii) that she has failed to account for all monies in hand for the account or credit of her client when she was reasonably required to do so.

  • 5. The Appellant, by her conduct, has breached Canon 1(b) in that she has failed to maintain the honour and dignity of the profession and she has brought her profession into disrepute."

8

These Canons were made pursuant to section 12 (7) of the Act and are entitled, the "Legal Profession (Canons of Professional Ethics) Rules." They are to be found in the Jamaica Gazette Supplement dated Friday December 29, 1978.

9

The allegations were based on an affidavit of the complainant Alton Johnson made pursuant to section 12(1) of the Act. His complaint was that in July 1993 he retained the appellant to act on his behalf for the sale of 3 Milton Avenue, Kingston 20. As he could get no word from the appellant during the remaining months of 1993 and the first half of 1994, despite frequent requests, he terminated the retainer and requested that she discontinue the sale. He also asked that she return the deposit to the purchaser and render a statement of account. The complaint was that she did not comply with any of these instructions.

10

In addition to telephone requests, Alton Johnson also wrote to the appellant. Be it noted that breach of Canon VII (b) (ii) as well as other charges preferred pursuant to the other Canons constitute misconduct in a professional respect. It was in circumstances where he could get no response from the appellant that Alton Johnson informed one of the purchasers of the property that he was no longer willing to sell the property which was now valued at $1,300,000 in contrast to the original selling price of $680,000. The purchaser then offered $150,000.00 more which he rejected.

11

The other complaints were that instructions were given to the appellant to pay water fates out of the deposit of $130,000 which she declined to do. An enquiry was made as to whether the deposit was earning interest, but no answer was forthcoming.

12

The adverse findings were made by the Disciplinary Committee (Pamela Benka-Coker Q.C., Norma Linton Q.C. and Allan Wood) and it is convenient to deal firstly with the most serious complaint.

13

Failure to render accounts

14

Canon VII of the 1978 Legal Profession (Canons of Professional Ethics) Rules states:

  • (a) An Attorney shall comply with rules as may from time to time be prescribed by the General Legal Council relating to the keeping in separate accounts -

    • (i) the funds of himself or any firm with which he is associated; and

    • (ii) those of his clients

  • *(b) An Attorney shall -

    • (i) keep such accounts as shall clearly and accurately distinguish the financial position between himself and his client as and when required; and

    • (ii) 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 he shall for these purposes keep the said accounts in conformity with the regulations which may from time to time be prescribed by the General Legal Council.

  • (c)Nothing in these Canons shall deprive an Attorney of any recourse or right whether by way of lien, set-off, counter-claim, charge or otherwise against monies standing to the credit of a client's account maintained by that Attorney."

15

The Disciplinary Committee stated:

"At the time of his request for an account, by the letter dated 29 th July 1994, the Complainant was, in our view justifiably dissatisfied with the Respondent's performance and was communicating the termination of her retainer; notwithstanding that communication the Respondent continued to act, to hold the deposit paid to her under the agreement for sale and failed to provide the account requested until one year later when an account dated 12 th July 1995 was provided, Exhibit 9. The balance held by the Respondent at the date of her accounting, was not forwarded until 17 th August 1995, see Exhibit 10, a letter from Ian Wilkinson dated 2 nd October 1995. What was the justification for the Respondent's delay in complying with the Complainant's clear and unambiguous instructions?"

16

The Disciplinary Committee examined with care the explanation adduced by the Appellant and having regard to the onus of proof rendered its reason thus:

"The Respondent's answer was that there was no power to impose such a condition but it was done as a precaution. Subsequently the following exchange occurred between the Complainant and the Respondent:

'Johnson: What is your fiduciary responsibility to me when you were acting as my attorney?

Jones: It is my understanding that when a deposit is paid to a lawyer, the lawyer holds the deposit on behalf of the purchaser or in certain circumstances for both as a stakeholder. I do not believe that I owed Mr. Johnson a fiduciary duty as I was not a trustee for him but for the purchasers although J did owe a duty to him to account. If I was a trustee for Mr. Johnson I had a duty to account to him for money which passed through my hands.'

The Respondent's evidence as to her understanding of her fiduciary duties, if any, to her client, the Complainant, is in our opinion the most important piece of testimony elicited in this matter, for when her actions and omissions are viewed in the context of her understanding of her legal and fiduciary duties, it becomes apparent that the Respondent's conduct, and particularly her refusal to comply with the Complainant's instructions to hand over the papers and to account to him, was not necessarily motivated by considerations of what was in...

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