Professional Misconduct in the English Speaking Caribbean

An attorney may commit professional misconduct by failing to “… fulfill his duty, in promoting in his own sphere of interest, the cause of justice”.1

In the Trinidad and Tobago case, In the matter of Gail Robinson and Beverly Scobie, Solicitors and In the Matter of the Inherent Jurisdiction of the Court, it was noted that:

Unprofessional conduct is not limited to cases where the misconduct charged amounts to an indictable offence2 or is professional in character but extends to all cases where the solicitor’s conduct is improper i.e. such as to render him unfit to be an officer of the court3

The standards of professional conduct in Jamaica is governed by the Legal Profession (Canons of Professional Ethics) Rules. It is prescribed by the General Legal Council pursuant to the provision of section 12(7) of the Legal Profession Act 1971. The Legal Profession (Canons of Professional Ethics) Rules governs and regulates the standards of professional conduct expected of attorneys – at – law.

Other English speaking Caribbean territories have similar Codes/Canons of Ethics. Only Guyana does not have prescribed rules of conduct. However this does not mean that attorneys are not expected to observe standards of professional conduct.

The rules that make up the Codes/Canons of Ethics of other English speaking Caribbean territories, are derived from common law principles. The Canons/Codes of Ethics are just codifications of these principles. Therefore the guidelines provided by common law principles are just as applicable in Guyana.

The Code/Canon of Ethics provide “ … in effect that specific breaches of the rules contained therein shall constitute professional misconduct and more specifically an attorney who commits such breaches shall be liable to any of the penalties which the Disciplinary Committee and or the court is empowered to impose.”4

The standard of conduct expected from an attorney is high. Therefore even though an attorney may do something that is not automatically punishable as

1 Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 1872 The classification of offences as indictable and summary broadly reflects a distinction between serious and minor crimes. For practical purposes it is the question of trial with or without a jury which is the important distinction between trial on indictment and summary trial. Offences triable only on indictment include any offence punishable by death or imprisonment for life on first conviction3 HCA No. 2 of 1985 Trinidad & Tobago (unreported) at p 244 Ibid, Nunez – Tesheira, p 187

professional misconduct, he may still be penalised. For instance Canon I (b) of the Code of Ethics states that:

An attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member.

Breaches of Duty Constituting Professional Misconduct

“It should be noted at the outset that there is a duty on every attorney to report improper or unprofessional conduct by a colleague to the Law/Bar Association or other appropriate tribunal save where the information relating to improper or unprofessional conduct is received in professional confidence.”5

1. Breach of Duty to State and Public

An attorney is guilty of professional misconduct if he advises or assists in the violation of the laws of the state.

The duty to the state and public is also breached if an attorney enters into a partnership concerning the practice of law with non – qualified bodies or persons. The attorney will also be guilty of professional misconduct if he holds a person as a partner, associate consultant or attorney – at – law, when that person is not qualified.

2. Breach of Duty to the Court

An attorney is an officer of the court. Therefore an attorney is under a duty to help in the administration of justice. He is expected to be respectful to the court and to avoid undignified or discourteous conduct, which is degrading to the court. Some examples of breaches of the duty to the court are:

i. deliberately making false accusations against a judge or magistrate;

ii. writing letters to the court which are improper, abusive or threatening that are meant to influence the judge “ … to adopt a cause he would not otherwise pursue”6;

iii. deliberately acting without authority;

iv. knowingly and deliberately allowing a client to swear to an affidavit which is false;

5 Ibid, Nunez – Tesheira, p 1886 Ibid, Nunez – Tesheira, p 189

v. “attempting to influence the court by e.g. privately discussing a pending case with the presiding judge”7;

vi. knowingly submitting in court a document that has not been properly stamped as required by the relevant law;

vii. deliberately making a bad point in order to mislead the court. The attorney only becomes guilty of professional misconduct if he acted dishonestly;

viii. taking part in the creation of evidence known to be false and using perjured evidence or testimony; and

ix. making unfair remarks to the jury, using improper evidence, using irrelevant evidence.

3. Breach of Duty to Client

In General

“An attorney is under a duty to always act in the best interest of his client, to represent him honestly, competently and zealously and endeavour to obtain the benefit of any and every remedy and defence which is authorised by law.”8

For instance in Sankar v. The State9, a Trinidad and Tobago case, the Privy Council found that a defence lawyer had failed in his duty, because he had not explained the legal implications of giving or failing to give evidence at trial. He had failed to give options to the client, even if he, depending on his client’s decision, would feel obliged to withdraw.

Another general duty of an attorney relates to his acceptance of a retainer. An attorney will be guilty of professional misconduct if he attempts to advise, before he has obtained full knowledge of the facts. “He should therefore avoid making bold assurances and beware of rash and confident guarantees especially when his employment depends on these assurances.”10

This means that an attorney must be candid with a client about the likelihood of failure or success. He must not allow his client to embark on useless litigation, particularly when the prospects of success are non-existent. It should be noted however that clients are free to reject this advice and insist on litigation. In such circumstances an attorney – at – law will not have acted improperly if he acts for a party who pursues a claim or defence that will obviously fail.11

7 Ibid8 Ibid, Nunez – Tesheira, p 1909 46 WIR 45210 Forrester v. Francis CLE 156/1983 Jamaica (unreported)11 Ridehalgh v. Hansfield [1994] Ch 205

However on the other hand, an attorney – at – law must not induce his client to settle against his wishes by misrepresentation.12

In Particular

“An attorney is inter alia guilty of professional misconduct vis-a-vis his clients in the following specific instances:

(i) Confidentiality

Where he fails or neglects to preserve the confidentiality of his client except if such communication has been made in furtherance of a crime, fraud or other unlawful transaction.

(ii) Conflict of Interest

Where he acts in any manner in which his professional duties and his personal interest conflict or are likely to conflict.

(iii) Multiple Representation

Where in the case multiple representation, he acts or continues to act where the interest of representatives clients are likely to conflict or his professional judgement is likely to be impaired.

(iv) Fees

Where he charges fees which are unfair and unreasonable or where he charges fees which are either an over or under-estimate of the services rendered.

(v) Duty to Exercise Care and Skill

An attorney is under a general duty to act expeditiously in dealing with his client’s matters and to bring to the discharge of his duties thereunder, the necessary degree of skill, competence and knowledge. In failing to exercise due care and skill in the conduct of his duties an attorney may be guilty of professional misconduct. This Misconduct may, depending on the facts of the case, be compensatory or punitive in nature.”13

(a) Professional Misconduct of a Compensatory Nature – Wasted Costs in Proceedings

12 Bartrum v. Hopkinson (1931 – 37) LRBG 69 (Guyana)13 Ibid, Nunez – Tesheira, pp 191 - 192

If a lawyer, whether acting as a solicitor or barrister, will be guilty of professional misconduct if costs are needlessly incurred or wasted. This may be as a result of failure and default to act competently and/or within a reasonable time. In situations like this the court makes an order of costs against the attorney personally.

In cases like this the court does not exercise a punitive jurisdiction over the offending attorney.

(b) Professional Misconduct of a Punitive Nature

“Although there is some variation in the actual wording, the respective Code/Canon of Ethics of the various territories, provides that an attorney – at – law shall not act with unreasonable or undue delay, negligence or neglect and in the case of Jamaica, inexcusable or deplorable negligence or neglect14.15 Such action constitutes professional negligence and may also constitute professional misconduct. In the case of professional misconduct, a competent tribunal or the court may exercise its punitive jurisdiction.

This is a mandatory rule.

It is important to remember that negligence “ … might amount to professional misconduct if it was inexcusable, and such as to be regarded as deplorable…”16 by other lawyers.17

It used to be thought that professional negligence could not constitute punitive professional misconduct unless the lawyer’s actions were dishonourable or morally base.

For instance in Witter v. Forbes18, an attorney negotiated on behalf of his client with Citibank, who was owed JA$15,000.00 by the former. In a letter addressed to the client, dated January 27, 1979, Citibank proposed a settlement. The attorney did not communicate this proposal until October 1980. Proceedings were brought before the General Legal Council for professional misconduct. One of the grounds of compliant was the breach of Canon IV (s) which states that an attorney “shall not act with inexcusable or deplorable negligence or neglect”.

It was argued that professional misconduct had to involve an element of wrongdoing, deceit or moral turpitude.

14 Canon of Ethics IV (s). See also Canon IV (r)15 Ibid, Nunez – Tesheira, p 192 16 Re A Solicitor [1972] 2 All ER 81117 Canon of Ethics IV (s)18 CA 1/1986 Jamaica (unreported)

It was held that Canon IV (s) had been infringed. It was pointed out that Canon IV (s) did not require the attorney’s negligence to involve dishonourable conduct or moral turpitude.

(vi) Fraud/Misappropriation of Client’s Funds

“As a general rule, any form of fraud or dishonesty committed by an attorney against the interest of his client will be deemed to be professional misconduct. This includes misappropriation of clients’ funds, failure to apply a client’s funds for the purpose for which it was intended, overcharging and failing to keep proper accounts.”19

The Codes/Canons of Ethics of the various territories provide that:

(i) an attorney must never mingle his funds with those of others, and that he should at all times be able to refund money he holds for others; and

(ii) an attorney should keep up to date accurate accounts so that his financial position and that of his clients can be distinguished when required.

It should be noted that the General Legal Council of Jamaica has provided detailed guidelines for the keeping of “… client accounts etc, maintaining of books of assets in respect of client’s money received, held or paid by the attorney and the payment of interest on client’s money.”20

4. Breach of Duty to Profession and Fellow Attorneys

In General

An attorney must behave towards his fellow attorneys with courtesy, fairness and good faith. An attorney should not allow the ill feelings of his clients to affect his relationship with his fellow attorneys.

In Particular

(i) Undertakings

Attorneys must fulfill obligations he has promised to execute in any undertakings21 to the court as well as to his fellow attorneys. Breach of an

19 Ibid, Nunez – Tesheira, p 19420 Ibid, Nunez – Tesheira, p 19521 “An undertaking is a pledge or promise made by an attorney – at – law in his professional capacity to do or refrain from doing some act. Although undertakings may be give orally, they should as a general rule be written or confirmed in writing” - Ibid, Nunez – Tesheira, 156

undertaking constitutes professional misconduct as well as (in appropriate instances) contempt of court.

(ii) Touting and Advertising

Attorneys are not permitted to advertise22. However attorneys are permitted to allow dignified identification of themselves as attorneys. Therefore they are allowed to print calling cards, letterheads, office signs or directory listings.

It is also a breach of the Canon of Ethics to tout for custom23. Touting is soliciting for custom fraudulently. It is illegal whether the attorney does it or is done by someone paid by him. If an attorney pays or rewards someone directly or indirectly for getting him work he will be in breach of his professional duty.

5. Criminal Offences

In General

“Where an attorney commits a criminal offence which in the opinion of the Court or other competent tribunal is of a nature likely to bring the legal profession into disrepute, the commission of the offence shall constitute professional misconduct. In this regard, the offence must be of a personally disgraceful character, the commission of which would make the attorney unfit to be a member of a strictly honourable profession.”24

All that is necessary for a finding of professional misconduct is that the attorney’s conduct brings dishonour to the profession generally.25

Once the Court, Disciplinary Committee or other competent tribunal is satisfied about the facts constituting the crime it will not matter:

i. if it is contended that the attorney was wrongfully convicted;

ii. that the attorney was not prosecuted; andiii. that the attorney was acquitted on a technical defence.

For instance in the case Re King26 “… an attorney was convicted at first instance of conspiracy to defraud. On appeal the decision was reversed because the indictment was defective. Upon proceedings to strike him off the Roll of the

22 Canon of Ethics II (d)23 Canon of Ethics IV (g)24 Ibid, Nunez – Tesheira, pp 196 - 19725 Re Hill (1868) LR 3 QB 54326 (1845) 8 QB 129

Court, Denman CJ said:

We must not merely because the indictment is bad in point of law, shut our eyes to the fact that the jury have convicted him of conduct rendering him unfit to be an attorney.Further, it is necessary neither that the offence or crime be of a pecuniary nature nor that the attorney should have been convicted as a practising attorney. All that is necessary is that the offence brings dishonour to the profession generally.

In Particular

(i) Offences involving Fraud/Dishonesty

An attorney who has been convicted of an offence involving frauds or dishonesty will de facto be deemed guilty of professional misconduct in his capacity as attorney.27 Such offences include bribery, forgery, making false affidavits, embezzlement, obtaining money by threats, bribery, frauds and conspiracy to pervert the course of justice.28

(ii) Offences Involving Immoral Conduct

This is a second class of cases in respect of which disciplinary sanctions may be imposed against an attorney. Examples of such offences include knowingly permitting premises owned by the attorney to be used as a brothel, acts of indecent assault and using threatening or abusive language intended to provoke a breach of the peace.”29

Professional Discipline: Part I – Punitive Jurisdiction

If a lawyer breaches the accepted standards of professional conduct he will be subject to the disciplinary jurisdiction of the court and/or other competent tribunals. The disciplinary jurisdictions of these bodies are both punitive and compensatory30.

It is important to note that the court’s punitive jurisdiction over an attorney in disciplinary matters is completely different from the legal rights and remedies of a client or those that other aggrieved parties may have against an offending attorney. Take for instance Lord Esher’s point of view in Re Grey31:

The court has a punitive and disciplinary jurisdiction over solicitors as officers of the court which is not exercised for the purpose of enforcing legal rights but for the purpose of enforcing honourable

27 Re Weare [1893] 2 QB 43928 Re Blake (1860) E & E 34; Stephens v. Hill (1842) 10 M & w 28; Re Sinanan (1964) 7 WIR 9329 Ibid, Nunez – Tesheira, p 19730 Myers v. Elman [1940] 1 AC 282 at pp 318 - 319 HL31 [1982] 2 QBD 440 CA

conduct on the part of the court’s own officers. That power of the court is quite distinct from any legal rights or remedies of the parties and cannot therefore, be affected by anything which affects the strict legal rights of the parties.

With the exceptions of The Bahamas, Jamaica and to a limited extent Trinidad and Tobago and St. Lucia, the court exercises a punitive jurisdiction over all lawyers. This means they can fine and suspend lawyers as well as strike lawyers of the Roll. The reason is in the Caribbean, all attorneys are admitted to practice by the court.

Extent and Ambit of the Court’s Inherent Disciplinary Jurisdiction

The court’s power to discipline an attorney, without referring to the relevant disciplinary tribunal was considered in the Trinidad and Tobago case of In the matter of Gail Robinson and Beverly Scobie and In the Matter of the Inherent Jurisdiction of the Court32. In this case, two solicitors were called before the court to show cause why they should not be struck off the Roll of Court. The National Insurance Board (NIB) was a client of the firm of which the two attorneys were partners. NIB had entrusted three million dollars to the firm. Subsequently a case of wrongful conversion33 was made against the two solicitors.

Deyalsingh J found that he had the right and duty as a judge of the High Court, to exercise the court’s inherent jurisdiction to discipline the two solicitors. His action was in response to the objective of the legal representatives from the Disciplinary Committee of the Law Society. Deyalsingh noted that

The court’s inherent jurisdiction in respect of solicitors cannot be disputed. It is the guardian of the good conduct of the profession and it is incumbent on the court to see that the conduct of its’ officers is beyond reproach and punish those whose conduct is unbecoming of the officer.34

Trinidad and Tobago subsequently codified this punitive jurisdiction of the court in s. 42 of the Legal Profession Act 21/1986. The Legal Profession Act of other territories have also inserted an equivalent provision, they are Barbados, Antigua & Barbuda, Jamaica, St. Lucia and Guyana.

However Karen Nunez – Tesheira writes that regardless of the court’s inherent jurisdiction “ … the proper course for the court to adopt, except in the most urgent and exceptional cases, is for the judges to make or cause the Registrar to make a report to the relevant Disciplinary Tribunal where evidence of misconduct is brought t it’s attention at the hearing of the matter or other proceedings in court.”35

32 HCA No. 2/1985 Trinidad & Tobago (unreported)33 Wrongful conversion is “A tort, committed by a person who deals with chattels not belonging to him in a manner inconsistent with rights of the owner” – Osborn’s Concise Law Dictionary34 HCA No. 2/1985 Trinidad & Tobago (unreported) p. 2435 Ibid, Nunez – Tesheira, p 207

As a matter of fact s. 12(2) of the Legal Profession Act 1971 expressly provides that:

At the hearing of a matter in which a Judge considers that an act of professional misconduct or criminal offence has been committed by an attorney – at – law, he may make or cause the Registrar to make an application to the Committee in respect of the attorney – at – law.

Antigua & Barbuda, Barbados, Trinidad and Tobago and St. Lucia all have similar provisions in their respective Legal Profession Acts.

Alternatively, the court could in cases where there is evidence of criminal wrongdoing, report the matter to the office of the Director of Public Prosecution (DPP)36.

The Exercise of the Court’s Punitive Jurisdiction in Jamaica

“Barristers

Prior to 1960, the Judges of the Supreme Court, exercised exclusive punitive jurisdiction over barristers. However in 1960, The Bar Regulations Law, Cap. 120 was enacted. This law established a Disciplinary Committee of the Bar Association comprising inter alia of the Attorney General as an ex officio37 member, and six barristers duly appointed by the Governor on the recommendation of the Bar Association.38 The Committee was given full punitive powers, including the power to fine, reprimand, suspend and to debar a barrister – at – law from practice.39

Solicitors

Pursuant to the Solicitors Law Cap. 363, a Solicitors Disciplinary Committee was established in 1941. In accordance with s. 35(2) on the hearing of an application, the Committee was given the power to inter alia remove from, or strike off the Roll, the name of the solicitor to whom the application relates and to suspend the solicitor from practice.

Current Position

36 In the Matter of Jeffrey L Toppin, Attorney – at – law and In the Matter of the Legal Profession Act Cap 370A. Judgement dated December 2, 1987. No number assigned to the proceedings (Barbados)37 By virtue of his office38 Section 5 of the Bar Regulations Law Cap. 12039 Section 6 of the Bar Regulations Law Cap. 120

In 1972, the Legal Profession Act was enacted. This Act inter alia fused the legal profession and established the General Legal Council as the disciplinary body for the newly fused profession of attorneys – at – law.40 The Council was charged with the general duty to uphold the standards of professional conduct of attorney – at – law and in particular, was given the full punitive powers as previously enjoyed by the respective Solicitors and Barristers Disciplinary Committees.41

Right of Appeal

Pursuant to s. 16 of the Legal Profession Act, an attorney has a right to appeal to the Court of Appeal against any order made by the Committee. The Court of Appeal:

(i) may dismiss the appeal and confirm the order; or

(ii) may allow the appeal and set aside the order; or

(iii) may vary the order; or

(iv) may allow the appeal and direct that the application be re-heard by the Committee.

Where it makes an order for the rehearing of an application, s. 17(1) specifically provides that no greater punishment shall be inflicted upon the attorney than was inflicted by the order made on the first hearing.

Where the Court of Appeal confirms the order whether with or without variation, the order takes effect from the date of the order made by the Court of Appeal confirming it.42”43

Ambit of Punitive Jurisdiction – Is it Extra – Territorial?

The punitive jurisdiction of the court extends to misconduct committed extra – territorially. This means that the court or disciplinary tribunal of a territory can discipline an attorney for acts of omissions or dishonesty committed locally as well as abroad.

The authority confirming the courts extra – territorial jurisdiction is McCalla v. The Disciplinary Committee of the General Legal Council44. The facts of McCalla are as follows. McCalla was admitted to practice in Jamaica in 1962. He then moved

40 Section 11 Legal Profession Act 197141 Section 12(4) Legal Profession Act 197142 Section 17(2) Legal Profession Act 197143 Ibid, Nunez – Tesheira, pp 214 - 21544 [1993] 49 WIR 213

to Canada to live and work between 1977 to 1985. In Canada he was admitted to practice by the Ontario Bar. In the meantime, his name was still on the Roll in Jamaica. He returned in March 1985 and resumed practice. The General Legal Council then discovered that McCalla had been struck from the Roll in Canada because:

(i) he published as his, the work of other persons without their permission; and

(ii) he lied on his application for employment with the Federal Government. He held himself out as a Q.C. and former Deputy Minister of Justice of Jamaica.

Taking into consideration the results of its’ own investigation as well as the charges that had caused McCall to be struck from he Roll in Canada, disciplinary proceedings against McCalla were commenced by the General Legal Council. The purpose of the proceedings, which were initiated by the Chairman, was to have McCall struck off the Roll of the Court of Jamaica.

At the Court of Appeal, Wright JA had the following to say about the General Legal Council’s entitlement to uphold standards of professional conduct:

There is no qualification attached thereto. Indeed it would be ludicrous in the extreme if a Jamaican attorney were allowed to roam the world conducting himself in a manner which breaches the rules of conduct which govern the profession of which he is a member and be allowed to maintain that he is not subject to the sanction of those rules because his conduct was outside Jamaica.45

Professional Discipline: Part II – Compensatory Jurisdiction

The compensatory jurisdiction of the court is exercised by the court making an order of costs against an attorney personally. This sometimes means that the attorney pays the costs of the other side. In other cases the attorney can be ordered to pay the costs of both parties.

This compensatory jurisdiction is exercised exclusively by the court. But it is only exercised in restricted circumstances. It is specifically incurred when an attorney acting as a solicitor/instructing attorney in the course of court proceedings cause costs to be improperly incurred or wasted because of undue delay or by misconduct or default or without reasonable cause.

However, although the court generally uses this disciplinary jurisdiction in a compensatory capacity, there is also a punitive element. This is because the solicitor will have to pay a bill that would ordinarily be paid by one of the parties to the litigation. As the solicitor will want to avoid this expense, as well as the

45 Ibid, at p 235

adverse publicity, the ability of the court to order costs also acts as a deterrent.

It should be noted that costs can be ordered against as attorney even though he is no longer on record46.

Negligence/Default – What Conduct is Sufficient?

Where the attorney’s conduct is a serious dereliction of duty that causes extra costs to be incurred, the compensatory jurisdiction of the court will be invoked.

An order will not be made against the attorney for personal payment of costs if his improper act or omissions falls short of a serious dereliction of duty. Therefore gross negligence or gross neglect will not invoke the courts compensatory jurisdiction.

It should be noted though, that the rules in England have changed.47 Now, even though a solicitor has not incurred extra costs because of a serious dereliction of duty or serious misconduct, he can still be asked to pay wasted costs personally. Therefore a solicitor can incur the court’s compensatory jurisdiction, if he has unreasonably or improperly incurred extra costs or has caused extra costs by his incompetence. The new rule has already been applied in the case of Sinclair Jones v. Kay48.

Professional Discipline: Part III – The General Legal Council

Constitution and Membership

The General Legal Council was constituted under the Legal Profession Act 1971. Under s. 11 the Disciplinary Committee consists of a minimum of 15 persons. The General Legal Council appoints them. Under the Act49, members of the disciplinary committee can be:

“i. members or former members of the Council;

ii. current or former holders of high judicial office;

iii. attorneys who were members of a former disciplinary body; and

iv. attorneys who have been in practice for not less than ten years.”50

46 Brendan v. Spiro [1937] 2 All ER 49647 Since April 1986, R.S.C.O. 62 r. 8 was replaced with R.S.C.O. 62 r. 11.48 [1988] 2 All ER 61149 See also the Third Schedule made under s. 11 of the Legal Profession Act 197150 Ibid, Nunez – Tesheira, pp 222 – 223

Under r. 2 of the Third Schedule of the Act, the Council will appoint one of the members of the Committee as Chairman. For the sake of speed in the investigation or the hearing of complaints made against attorneys the Committee usually sits in two or more divisions.

Each committee is required to appoint its’ own Chairman, they also need a quorum of three members before they are able to act.

Procedure

The procedure for the exercise of the General Legal Council’s disciplinary powers is set out in Schedule Four of the Legal Profession Act 1971. It is as follows:

1. A formal application is made by the complainant to the Disciplinary Committee in the prescribed form.

The applicant should set out the facts by affidavit (s). This is usually done by a client, but may also be done by an aggrieved person.

2. The application should be submitted to the Secretary of the General Legal Council51.

3. The Secretary will send the application to the Disciplinary Committee.

4. Apart from setting out the grounds for complaint, the application also calls upon the attorney to answer the allegations set out in the affidavit.

The complaint will be referred to the DPP if the complaint is of a criminal nature.

5. The Disciplinary Committee carries out investigations into the allegation.

At this stage the Disciplinary Committee may require further documentary proof relating to the allegations.

If the Disciplinary Committee finds that there is no prima facie case it will dismiss the application without requiring the attorney to appear to answer the allegation. The Disciplinary Committee will notify the applicant and the attorney of this decision in writing.

6. However if a prima facie case is made out the Disciplinary Committee will

51 The Secretary is appointed by the Committee and usually and is usually not an attorney-at-law

fix a date for the hearing of the application. The Marshal of the Court52 will serve the Notice of the hearing and copy of the affidavit to the attorney.

The Notice takes a prescribed form. It includes a request for a list of documents including affidavits on which the attorney will rely in answer to the allegations.

7. In compliance with the Notice the attorney is required to file and serve the requested documents and copies on the Secretary of the Disciplinary Committee and on the applicant. Either party may inspect the documents contained in the list furnished by each other.

Hearing

Applications are heard in private.

The hearing is conducted in conformity with the rules of evidence of a normal court hearing. The Disciplinary Committee may act in whole or in part upon the evidence given by the affidavit. If it is required the Disciplinary Committee may summon deponents53 to give oral evidence.

Standards of Proof

The standard of proof required goes beyond a balance of probabilities. Therefore the standard of proof is high. This is not surprising since allegations of misconduct involve elements of deceit or moral turpitude.

Professional Discipline: Part IV – The Record of Professional Discipline in Jamaica

“Figures for the past nine years were made available and according to the figures supplied by the General Legal Council, between 1992 – 2000, the number of complaints made to the General Legal Council averaged 240 per year. For the period 1995 – 2000, two attorneys have been suspended, seven removed from the Roll, one reprimanded and twenty-four fined”.54

Karen Nunez – Tesheira writes that generalisations should be avoided. But that the cynicism that the public feels towards legal professional discipline, in the English – speaking Caribbean, is well grounded. People feel that self-regulation

52 “In the Queen’s Bench Division of the High Court, a marshal is an officer who attends each judge on circuit in a personal capacity. The Marshal of the Admiralty Court is entrusted with execution of warrants and order of the court” – Osborn’s Concise Law Dictionary53 “A person who makes a written statement or deposition” – Osborn’s Concise Law Dictionary54 Ibid, Nunez – Tesheira, p 229

is tantamount to trying the Devil in Hell.55

Role

Today law is very much a business, than it is the pursuit of justice. But the traditional role of lawyers is to represent his client’s best interests to the court.

This said, it is important to remember that lawyers are officers of the court. Their primary allegiance is therefore not owed to their client, but to the bench.

The Role and Duties of Advocate Attorneys

Introduction

In the Caribbean the roles and duties of attorneys, whether as prosecution or defence counsel are set out in the Code/Canon of Ethics of the territories. The Codes/Canons of Ethics are however silent with respect to confessions of guilt. Because of this the English – speaking Caribbean territories have adopted The Code of Conduct for the Bar of England and Wales 1990, which has specific provisions on this score.

Also the role and duties of attorneys overlaps with professional misconduct. The Code/Canons of Ethics outline these duties, the breach of which constitutes professional misconduct. Here we look at the role and duties of advocate attorneys in relation to the conduct of court proceedings.

General Duties of Prosecution and Defence Counsel

The duties of prosecution counsel are wider in scope than that of defence counsel. As officers of the court, both have an overriding duty to the court. Defence counsel must be zealous in the defence of his client and he must try to obtain the best remedy, which is legally available to him.56 The role of the prosecution is to seek justice, which is a broader obligation. In criminal cases the prosecution must use every legitimate means to bring about a just conclusion57.

55 Ibid, Nunez – Tesheira, p 228 - 230

56 Canon of Ethics, Canon IV57 Canon of Ethics, Canon III (h)

Duty to Court in General

Whether prosecution or defence, an advocate attorney shall maintain a respectful attitude to the court in the discharge of his functions and responsibilities. Canon V (a) of the Canon of Ethics requires that an attorney does not behave in a manner that is degrading to the court. His conduct must be dignified and courteous. In the Bahamas, consistent rude, disruptive and provocative behaviour can invoke discipline, even though it has not punished as contempt.58 Consequently an attorney:

(i) shall not make scandalous statements or statements which are solely intended to insult or intimidate witnesses or other persons;

(ii) shall as an officer of the court and in the administration of justice be punctual when attending court. He should also be concise and direct in trial and in the disposition of cases. He should inform the courts of the estimated length of proceedings before the court when asked by the court. He should also inform the court of any changes that might affect the estimated length of proceedings.59

(iii) is required to reveal authorities or documents which are disadvantageous to his client, if he is required to make them available by the law or professional standards. Also when relying on authorities in support of his cases he is required to ensure that the decision has not been overruled.60

Duty to the Court in Particular

(i) Judges

Counsel should never give, lend or promise anything of value to the judge(s) when conducting proceedings before him. He should not attempt to privately influence him directly or indirectly, to act in his or his client’s favour.61 Also an attorney must not wilfully make false accusations against a judge or other judicial officer.62

(ii) Jurors

“With respect to jurors, an attorney shall not:

58 Code of Professional Conduct Rule III, Commentary 1259 Canon of Ethics, Canon V (q)60 Rondel v. Worsley [1969] 1 AC 191 at p. 227 also Young v. Morales (1995) 50 WIR 61 Canon of Ethics, Canon IV r (e)62 Canon of Ethics, Canon V (c)

(a) give lend or promise anything of value to a juror where there is a matter pending in which he is engaged;63

(b) make any attempts to curry favour with juries by fawning, flattery or pretended concern for their personal comfort;

(c) Communicate with a juror as to the merits of such proceedings, except where authorised by law or the practise in the court or in the normal course of proceedings with a judge or person exercising judicial functions.64”65

(iii) Witnesses

Attorneys are under a duty not to withhold facts or secret witnesses in order to show the guilt or innocence of the accused. He should not advise witnesses to make themselves unavailable to the court, for instance by leaving the court’s jurisdiction.66

Attorneys must not pay witnesses or offer to pay witnesses for giving evidence. But they can pay reasonably incurred expenses as well as reasonable compensation for loss of time in testifying in court as well as time taken to prepare for testimony. This also applies to expert witnesses67, but he should only be paid a reasonable fee for his professional services.68

Attorneys must not abuse, harass or intimidate witnesses.69 An attorney must not appear as a witness for his client except in formal matters where his appearance is essential to the ends of justice.70 Therefore if it is necessary for an attorney to be a witness in a formal matter, the conduct of the case should be entrusted to another attorney. Also, he is not to act as advocate in any appeal to the decision of the proceedings in which he was an attorney.71

(iv) Perjured Evidence/Fraud/Illegal Conduct

63 Canon of Ethics, Canon V (b)64 Canon of Ethics, Canon V (i)65 Nunez – Tesheira, K. (2001) The Legal Profession in the English – Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 23766 Canon of Ethics, Canon V (k)67 “ A person with special skill, technical knowledge or professional qualification whose opinion on any matter within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant; e.g. a doctor or surgeon, a handwriting expert, a foreign lawyer. It is for the court to decide whether the witness is so qualified as to be considered an expert. In any case to be tried without a jury, the court may appoint an independent expert, called the ‘court expert’, to inquire and report,” – Osborn’s Concise Law Dictionary68 Canon of Ethics, Canon IV (l)69 Canon of Ethics, Canon V (p)70 Canon of Ethics, Canon V (p)71 R v. Harris Hoo Shue [1936 – 40] 3 JLR 108

As an officer of the court an attorney must never knowingly mislead the court. He should also avoid implying things about the other party or witnesses when he has insufficient information to that effect.

An attorney:

(a) must not knowingly use perjured or false evidence, he must not help create or use evidence which he knows is untrue;72

(b) must not knowingly make a false statement of law or fact;

(c) must not knowingly present to a judge, court or other tribunal that a particular state of facts exists. If he knows that this has been done with the intention of misleading the court he must disclose this to the court or promptly cal on a witness to rectify the same;73 and

(d) must not help or advise his client or a witness in fraudulent or illegal conduct.

Duties of Defence Counsel

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful which he thinks will help his client’s case.”74 However as an officer of the court, his overriding duty is to the court in the administration of justice.75

It is the duty of defence counsel to seek justice. However he should endeavour not to declare his personal belief in the innocence of his client neither in argument to the court or when addressing the jury. Counsel also must not declare personal knowledge about any facts in the matter being investigated, nor is he to declare his belief in the justice of his cause.76

(i) Defending a Client Accused of a Crime

“When defending a client accused of a crime, irrespective of any belief or opinions which he may have formed as to the guilt or innocence of his client, defence counsel must endeavour to protect his client from being convicted except by a competent tribunal upon evidence which is sufficient to support a conviction for the offence with which the client is charged.77 In so doing he must not assert that which he knows to be false or set up a case inconsistent with the

72 Canon of Ethics, Canon V (m)73 Canon of Ethics, Canon V (n)74 Ibid, Nunez – Tesheira, p 23875 Rondel v. Worsley [1967] 3 All ER at p 99876 Canon of Ethics, Canon V (j)77 Canon of Ethics, Canon III (g)

information given to him by the client.”78

What happens if a client confesses his guilt to his attorney? Attorneys have a duty to their clients to maintain client/attorney confidentiality. On the other hand every attorney is an officer of the court with an overriding duty to the court. Therefore he must not knowingly mislead the court and he must not lie to the court.

In the situation where a client does confess to a crime an attorney must consider two facts;

(a) whether the accused’s confession of guilt is clear and unequivocal; and

(b) the stage at which the confession is made.

Where the confession is made before the commencement of proceedings

The attorney may withdraw from representing the client if he confesses before proceedings have started.79 But if the client is going to plead guilty the attorney may still act.

If the client insists on pleading not guilty an attorney may still continue to act. However he must explain all the possible consequences. In particular, he must explain that restrictions will be placed on the conduct of the defence (these will be considered below).80

Where the confession is made during proceedings

If an attorney wants to withdraw in criminal cases, he must seek the court’s leave. Whether leave is granted is in the court’s discretion. However if proceedings have commenced and an attorney’s withdrawal would compromise his client’s position, the attorney should continue to act. However he must act within the strict limitations, which are imposed by his client’s confession (we will look at these below).81

Limitations Imposed on Client on Conduct of Case

78 Ibid, Nunez – Tesheira, pp 238 – 239 79 The Code of Conduct for the Bar of England and Wales 1990 para 12.580 Ibid81 The Code of Conduct for the Bar of England and Wales 1990 para. 13.3 and R v. Lyons [1978] 68 Cr App 104

“Although defence counsel should not reveal the client’s perjury he must at the same time avoid any involvement in the client’s perjury. He should therefore seek to avoid direct examination of his client; he shall not argue to the jury the accused’s known false version of the facts; he may not recite or rely upon the client’s false testimony in his arguments. In addition he cannot make a plea in mitigation.82

In particular, defence counsel may not protest his client’s innocence nor set up an affirmative case consistent with the client’s confession by e.g. asserting or suggesting that some other person committed the offence charged or by calling any evidence in support of an alibi intended to show that the accused is taking the stand against his advice.

Although defence counsel is severely restricted in the conduct of the accused client’s defence in cases where the client has confessed his guilt, the attorney may nevertheless present a technical defence by, inter alia, objecting to the competency of the court, the form of the indictment and the admissibility or sufficiency of the evidence.83 In attacking the evidence for the prosecution, he is entitled to test the evidence of each individual witness for the prosecution by, inter alia, cross – examination or in his speech to the tribunal and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offences charged, but he should go no further than that.84

(ii) Disclosure of Previous Conviction of Client

Defence counsel is under no duty to disclose the fact that a client has a previous conviction if the prosecution has lead the court to believe that the accused client has no previous conviction.

(iii) Withdrawing from case

Counsel can refuse to act for a client who has confessed guilt but is still determined to plead not guilty. However the Canon of Ethics, Canon IV (q) lists the general circumstances in which an attorney can withdraw his services from an undecided case before the court or other tribunal. They are:

(a) where the attorney cannot conscientiously represent a claim or defence that the client insists upon;

(b) where the client wants to pursue an illegal path or deceive the court;

(c) where a client has committed fraud during proceedings but will not rectify or cannot rectify the matter when asked to by counsel;

82 The Code of Conduct for the Bar of England and Wales 1990 para. 13.383 The Code of Conduct for the Bar of England and Wales 1990 para. 13.484 The Code of Conduct for the Bar of England and Wales 1990 para. 13.5

(d) where to continue acting is tantamount violating a law or disciplinary rule;

(e) “where the client by any other conduct renders it unreasonably difficult for the Attorney to carry out his employment as such effectively or in accordance with the judgement and advice of the Attorney, or the Canon of professional ethics”85; and

(f) where counsel cannot carry out his services effectively for any other good and compelling reason.

Duties of Prosecution Counsel

Prosecution counsel is expected to act fairly and dispassionately. The reason is he is exercising a public function that is discretionary and which gives him power. His primary duty is to assist in the administration of justice. He should ensure that a case is conducted properly efficiently and in a reasonable time. It is not his duty to represent any person.

It is important to note that it is not the duty of prosecution counsel to obtain a conviction by every means at his command.86 Prosecution counsel must present the case fairly and impartially. Counsel is also to ensure that the jury is also briefed on the law relating to the facts.

Prosecution counsel must also male disclosures to the defence counsel (or to the accused) in a timely fashion. If the accused is not represented disclosures should be made to the court. Disclosures should include all the facts and all the witnesses known to prosecution counsel. This should be done whether or not the disclosures tend towards the innocence or guilt of the accused.87 Therefore prosecution counsel must:

(a) make promptly available to the defence all the witnesses and relevant statements; and

(b) to determine what evidence is necessary and write exactly what is necessary so as to send it to the defence counsel as soon as necessary.88

If prosecution counsel finds that there is no evidence or so little evidence as to make it dangerous to leave the case to the jury, he is under a duty to tell the court of his view. He should ask leave to withdraw from the prosecution. “It is quite wrong of counsel to accept any instructions to go on with a prosecution, once he

85 Canon of Ethics, Canon IV (v)86 Code of Professional Conduct for the Bar of England and Wale para 11.1187 Ibid88 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)

has formed a view that the prosecution should not continue89.”90

Prosecution must not withhold evidence that proves the guilt or innocence of the accused. Also in the settling of indictments91 prosecuting counsel should act promptly. He should also refrain from overloading it with too may defences or too many counts.92

Prosecution counsel should not attempt by advocacy, to influence the court in sentencing. If the defendant is unrepresented, prosecution counsel is duty bound to inform the court of mitigating circumstances he is

89 Abbot v. Refuge Assurance Ltd [1961] 1 QB 433 at 45190 Ibid, Nunez – Tesheira, p 242 91 “A formal document setting out the charges against the accused. An indictment consists of three parts: (1) the introduction indicating the venue and defendant; (2) the statement of offene; and (3) particulars of the offence92 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)