Paulette Warren-Smith v General Legal Council
| Jurisdiction | Jamaica |
| Judge | Mangatal JA (Ag) |
| Judgment Date | 16 July 2014 |
| Neutral Citation | JM 2014 CA 72 |
| Docket Number | MISCELLANEOUS APPEAL NO 4/2014 APPLICATION NO 108/2014 |
| Court | Court of Appeal (Jamaica) |
| Date | 16 July 2014 |
[2014] JMCA App 22
JAMAICA
IN THE COURT OF APPEAL
MISCELLANEOUS APPEAL NO 4/2014
APPLICATION NO 108/2014
and
In the Matter of the Legal Profession Act 1971
Leonard Green and Ms Sylvan Edwards instructed by Chen Green & Co for the applicant
Mrs Alexis Robinson instructed by Myers Fletcher & Gordon for the respondent
LEGAL PROFESSION - Disciplinary proceedings - Application for stay of execution - Whether the panel of the GLC improperly proceeded to hear the complaint in the absence of the complainants and entered judgment on the basis of a sworn affidavit supporting the complaint
This is an application by the appellant, Paulette Warren-Smith (“the applicant”), seeking a stay of the judgment/order of the Disciplinary Committee (“the Committee”) of the General Legal Council (“the GLC”), made on 31 May 2014, until an appeal filed by the applicant can be heard.
The judgment/order made by the Committee is as follows:
-
‘(1) The Attorney Paulette A Warren Smith, who practices from 14 Birdsucker Drive, Kingston 8 in the parish of Saint Andrew is struck from the Roll of Attorneys who practice from the several courts of Jamaica.
-
(2) The Attorney is to make restitution forthwith to Mr. & Mrs. Amos in the sum of US$48,766.00 plus interest of 3% per annum on the sum of US$24,766.00 from the 27 th September, 2001 to the date hereof and interest of 3% per annum on the sum of US$24,000.00 from 12 th April, 2003 to the date hereof.
-
(3) The Attorney is to pay to the General Legal Council costs of $50,000.00.’
The Committee proceeded with the hearing on 1 February and 22 March 2014 before rendering its decision and order on 31 May 2014. The Committee heard the matter in the absence of both the complainants and the applicant, expressing itself satisfied that adequate and proper notice had been given to the applicant in respect of each hearing date. An affidavit, sworn to by the complainants on 15 December 2011 along with exhibits was admitted as exhibit 1. A copy of this affidavit was kindly provided to me by counsel for the GLC, Mrs Robinson. The copy reveals that this affidavit was sworn to in the State of New York, in the United States of America, seemingly before a notary. The copy of the affidavit and exhibits provided to me simply has the signatures of the complainants and a stamp that states ‘Fitz T.
Beaumont, Notary State of New York, #01-BE-4868957 Qualified in Bronx County, Commission expires Sept. 28 th 2013’. I cannot trace a signature of the notary on the copy of the affidavit handed to me. Nor is there a certificate of a clerk of the County Court exhibited to this affidavit indicating the date when the notary's commission will expire. At paragraph 7 of its decision, under the sub-head ‘Findings’, the Committee stated, amongst other matters, that since the attorney had not responded when required to do so by the Disciplinary Committee and had not presented herself to dispute any of the allegations contained in the Complainants' affidavit ‘the Panel is left with no choice but to accept as the truth [sic] the affidavit, admitted in evidence as Exhibit 1 in its entirety and find that the … allegations have been established beyond a reasonable doubt….’ The Committee found the conduct of the applicant to be ‘egregious’ and found that she was in breach of Canons IV(r) and (s), VII(b)(ii) and I(b) of the Legal Profession (Canons of Professional Ethics) (Amendment) Rules, 1983 , which govern the legal profession in Jamaica.
The applicant has set out 16 grounds for the application for a stay, including the following:
-
‘…
-
(2) That the panel of the Disciplinary Committee improperly proceeded to hear the complaint in the absence of the Complainants and entered a Judgment on the basis of a sworn affidavit supporting the complaint.
-
(3) That the Applicant was never personally served with the complaint and contrary to the findings of the said Panel did not receive any actual notice concerning the hearing of the complaint brought against her.
-
…
-
(5) That the complainants' affidavit was improperly admitted by the panel in the absence of the complainants and there was no way to reasonably and properly testing [sic] the veracity of the allegations made therein.
-
(6) That in misdirecting itself the Panel came to erroneous and or improper findings of fact.
-
(7) That the Panel failed to take into account matters of mitigating circumstances in coming to its conclusions.
-
…
-
(9) That the Applicant/Appellant has a good and arguable appeal against the findings and sanctions imposed by the Disciplinary Committee.
-
…
-
(11) That the Panel did not and/or failed to apply and adhere to the rules of natural justice.
-
(12) That the judgment/orders made by the General Legal Council are manifestly harsh and excessive.
-
…
-
(14) That having failed to properly consider and assess the matters before it, the General Legal Council came to an erroneous/wrong conclusion.’
The application is supported by an ‘affidavit of Urgency’ sworn to by the applicant, and filed 26 June 2014. In her affidavit, the applicant indicated that she was admitted to the bar as an attorney-at-law in 1991 and that she has been engaged in the practice of law from that time until the time of the order made by the Disciplinary Committee. In paragraph 4 of the affidavit, the applicant listed a number of places where she has practiced as an attorney-at-law, including as legal officer with the Musson Group of Companies. This, she stated, was ‘from 2007 to the date of my recent resignation’.
The applicant attested that sometime in early June 2014, she was informed that there was an order made against her as described in paragraph [2] above. She indicated that she was quite surprised as she had no actual knowledge that a complaint was made against her by Linton and Marjorie Amos and had made all arrangements to have their matter dealt with and to have their names endorsed on the Titles as registered proprietors. She stated that from the documents shown to her, the address at which the GLC sought to have her served was care of 14 Birdsucker Drive, Kingston 8 in the parish of Saint Andrew. She attested that she has not practiced at that address since 2007 (see paragraphs 8, 9 and 15 of the affidavit).
At paragraphs 7, 10 – 12 and 18 – 20 the applicant stated as follows:
‘7. That over the years I have practiced as an Attorney-at-Law [sic] I have had an impeccable career and have not engaged in any kind of conduct that would bring the legal profession into disrepute.
…
10. That in the transaction that is the subject of the compliant [sic] I acted for vendors Edward and Sharon Speke while the complainants were purchasers.
11. All monies that I received from the complainants have been paid by me to the purchasers [sic] in satisfaction of my obligations to my clients.
12. The complainants having received their titles have displayed no interest in pursuing any complaint against me and this explains why they were not in attendance at any hearing date set by the Disciplinary Committee of the General Legal Council.
…
18. That should the judgement [sic] be enforced before the hearing of my appeal then I would face real and genuine hardship.
19. That without the judgement [sic] being stayed and the appeal pursued I would face absolute professional and financial distress, loss and damages [sic] and would face other real and genuine hardship.
20. That the Court's over-riding objective will be advanced by the making of the Orders being sought herein and that there is no prejudice to the respondent's case.
…’
In response to this application the GLC filed on 2 July 2014, the affidavit of Dahlia Davis, the GLC's Secretary. In that affidavit, Miss Davis addressed the question of service. She exhibited copies of the GLC's affidavits of service of notices of hearing dates, served by registered mail on the applicant at 14 Birdsucker Drive, Kingston 8....
To continue reading
Request your trial