The General Legal Council v Michael Lorne
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Harris JA,Dunbar-Green JA,Mcdonald-Bishop JA |
| Judgment Date | 08 April 2022 |
| Neutral Citation | JM 2022 CA 043 |
| Docket Number | MISCELLANEOUS APPEAL NO 3/2017 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA App 12
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Harris JA
THE HON Mrs Justice Dunbar-Green JA (AG)
MISCELLANEOUS APPEAL NO 3/2017
MOTION NO COA2021MT00005
IN THE COURT OF APPEAL
Mrs Sandra Minott-Phillips QC, Jahmar Clarke and Litrow Hickson instructed by Myers Fletcher & Gordon for the applicant
Miss Bianca Samuels instructed by Knight Junor & Samuels for the respondent
This is an application by the General Legal Council (‘the GLC’) for leave to appeal to Her Majesty in Council (‘the Privy Council’) from the decision of this court made on 26 March 2021 and embodied in the written judgment cited as Michael Lorne v The General Legal Council (Ex parte Olive C Blake) [2021] JMCA Civ 17 (‘the judgment’).
A comprehensive background to these proceedings is set out in the judgment and, for expediency's sake, I will adopt the salient facts rehearsed by F Williams JA. They are as follows: By way of a written complaint dated 8 October 2012, Ms Olive Blake (‘the complainant’) reported to the GLC that attorney-at-law, Mr Michael Lorne (‘the respondent’), was retained to sell a property which she was entitled to as a beneficiary. However, the respondent had failed to account to her concerning her proceeds from the sale. The complainant contended that she was entitled to half the proceeds of sale on the basis that she and her brother had been devised the premises in equal shares by their father, now deceased. She alleged that she and her brother were the co-executors and sole beneficiaries under their father's will. The Disciplinary Committee of the GLC (‘the disciplinary committee’) found that the property was transferred on 22 November 2011 and, therefore, the complainant had not been paid any part of the proceeds of sale for almost a year. The one-year period would have been from the time the transfer was made to the vendor to when the complainant made her complaint to the GLC.
The respondent contended that he was instructed by the complainant's brother to give the proceeds of sale to him rather than to the complainant because the complainant had used other funds from the estate, which exceeded her half interest in the proceeds of sale from the property. The respondent stated that, on those instructions, he had forwarded all proceeds of the sale to the complainant's brother. However, the respondent eventually agreed that he ought to have divided and paid in equal shares the net proceeds from the sale of the property to the complainant and her brother.
The disciplinary committee found the respondent guilty of professional misconduct in breach of canon VII(b)(ii) of the Legal Profession (Canons of Professional Ethics) Rules (‘the Canons’). By way of sanction, it ordered that the respondent be struck from the Roll of attorneys-at-law entitled to practise in Jamaica (‘the Roll’) and make payments in restitution to the complainant.
The respondent appealed against the decision and orders of the disciplinary committee.
Upon determination of the appeal, the court, while affirming the judgments of the disciplinary committee dated 2 March 2017 and 26 April 2017, varied the orders in the sanctions judgment dated 24 June 2017. In varying the sanction orders, the court set aside the order that the appellant be struck from the Roll and substituted these orders:
“(a) That the appellant be suspended from practicing as an attorney-at-law for a period of five years, commencing from 24 June 2017.
(b) Before being restored to the Roll of attorneys-at-law entitled to practise in Jamaica, the appellant shall successfully attain 10 credits in continuing legal professional development courses, approved by the GLC's Accreditation Committee, relating to the areas of client welfare, and business management with an emphasis on conflict of interest, in addition to any other usual requirement imposed on all attorneys-at-law entitled to practice in Jamaica.
(c) There shall be liberty to apply with respect to this part of the court's orders.”
The sanctions judgment was affirmed in all other respects.
The GLC has advanced four grounds supporting the application for conditional leave to appeal, which are reinforced by the affidavit evidence of the GLC's chairman, Mr Allan Wood QC, sworn to on 12 April 2021. The grounds on which the application is being pursued are:
“1. The decision is a final one in a disciplinary proceeding conducted under the Legal Profession Act involving a question as to the interpretation of the Constitution of Jamaica.
2. Alternatively, the appeal involves questions that, by reason of their great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, namely:
a. Was the sanction of striking off the Respondent from the Roll of attorneys-at-law entitled to practice law in Jamaica imposed by the Applicant unquestionably an error of law, or plainly inappropriate, so as to warrant the intervention of the Court of Appeal, its setting aside of the Applicant's striking off order, and its imposition of lesser sanctions?
b. Does section 16 of the Constitution (referenced by the Court of Appeal in its decision) in any way alter the approach that is to be taken by the Applicant in balancing private and public interests when imposing sanctions on attorneys-at-law for professional misconduct?
c. Is this decision of the Court of Appeal likely to curtail the Applicant's ability to strike an attorney-at-law from the Roll for professional misconduct in circumstances where it has made no finding of dishonesty?
d. In the circumstances of this case ought not the Court of Appeal to have deferred to the decision of the Applicant as an expert and informed tribunal particularly well placed to access what measures were required to deal with the defaulting attorney-at-law and to protect the public interest?
e. Is it in the public interest to allow the Respondent to continue practicing as an attorney-at-law and thereby have the opportunity to repeat his lapse of the required standards of integrity, probity and trustworthiness?
3. Section 110(1)(c) of the Constitution of Jamaica provides that an appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right in final decisions that fall within ground 1 above.
4. Section 110(2)(a) of the Constitution of Jamaica provides that an appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court where, in its opinion, the question involved in the appeal falls within ground 2 above.”
From the grounds for the application and the supporting evidence, I have distilled the following issues:
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(1) Whether the final decision of the court involves a question as to the interpretation of the Constitution so that an appeal shall lie to the Privy Council as of right, pursuant to section 110(1)(c) of the Constitution (grounds 1 and 3).
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(2) Whether the criterion of “great general or public importance or otherwise” has been established by the GLC, so that conditional leave to appeal to the Privy Council may be granted by the court, pursuant to section 110(2)(a) of the Constitution (grounds 2 and 4).
Section 110(1)(c) of the Constitution provides that an appeal shall lie to the Privy Council as of right from final decisions of this court on questions involving the interpretation of the Constitution. The provision reads:
“110. - (1) An appeal shall lie from decisions of the Court of Appeal to her Majesty in Council as of right in the following cases-
…
(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; …”
The basis of the contention on the part of the GLC emanates from the following paragraphs of the judgment, where the court stated that:
“[27] It is true that the position with respect to appellate courts being loath to interfere with sanctions of disciplinary tribunals, is as reflected in such cases as In Re a Solicitor. Similar guidance as to the approach of courts to these matters might also be seen in the case of Bolton v The Law Society.
[28] A perusal of later cases, however, does convey the impression that the modern-day approach is somewhat less hidebound than it originally was. For example, in the case of The Law Society v Brendan John Salsbury [2008] EWCA Civ 1285, it was observed by the English Court of Appeal, at paragraph [30] of the report, as follows:
‘From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that ‘a very strong case’ is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors...
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