A (Attorney-At-Law)

• Jurisdiction: Cayman Islands
• Judge: Worsley, Ag. J.
• Judgment Date: 08 March 2021
• Court: Grand Court (Cayman Islands)

In the Matter of A (Attorney-at-Law)

(Worsley, Ag. J.)

GRAND CT.

Attorneys-at-Law — disciplinary proceedings — professional misconduct — conduct unbecoming of attorney-at-law in respect of handling of legal action over several years — failure to advance clients' case expeditiously; failure promptly to pay out all moneys received; failure to produce final account; failure to preserve essential records; and failure to respond promptly to Chief Justice

Held, ruling as follows:

(1) The burden of proving the allegation rested on the Attorney General who laid the charge. The standard of proof was the criminal standard. It would not be sufficient to found the charge that the court had regard to the cumulative effect of the heads of evidence which were only made out to the civil standard. Each head must be considered separately and only if proved to the requisite criminal standard could it be used as evidence of conduct unbecoming (paras. 21–24).

(2) The court found that under the five heads advanced by the Attorney General, Mr. A had acted unprofessionally and was therefore in breach of the code of conduct. Mr. A failed to advance his clients' case expeditiously; he failed promptly to pay out all moneys received; he failed to produce a final account; he failed to preserve essential records; and he failed to respond promptly to the Chief Justice. There was no justification for his conduct. It had fallen woefully below the standards to be expected of any experienced attorney-at-law practising in the Cayman Islands (paras. 74–76).

Cases cited:

(1) Att. Gen. v. Carbonneau, 2003 CILR 129, considered.

(2) Bodden v. Thompson, 2011 (2) CILR 320, referred to.

(3) Bolton v. The Law Society, [1994] 1 W.L.R. 512; [1994] 2 All E.R. 486, considered.

(4) Campbell v. Hamlet, [2005] UKPC 19; [2005] 3 All E.R. 1116, considered.

(5) H.A. Grey, In re, [1892] 2 Q.B. 440, considered.

(6) Myers v. Elman, [1940] A.C. 282; [1939] 4 All E.R. 484, considered.

(7) Roylance v. General Medical Council (No. 2), [2000] 1 A.C. 311; [1999] 3 W.L.R. 541, considered.

Disciplinary proceedings were brought against an attorney-at-law.

Mr. A had been an attorney-at-law since 1995. The Attorney General brought disciplinary proceedings against Mr. A in respect of Mr. A's handling of a legal action. The charge stated: “Mr. A engaged in conduct which is unbecoming of an Attorney at Law and Officer of the Court and that the totality of the material before the Grand Court discloses that there has been professional misconduct on the part of the Attorney.”

The original action concerned an incident in 2001 in which the plaintiffs were struck and injured by a car. One of the plaintiffs, Mr. Wilson, suffered life changing brain injuries; his wife suffered a shoulder injury. Mr. A was retained in 2002 to conduct the case. Mr. A submitted a schedule of loss claiming damages of over $3m. In 2004, the plaintiffs were granted judgment with damages to be assessed. Over a period of time, $707,000 was paid by the defendants as interim payments. By November 2006, medical reports on the first plaintiff indicated that no further improvement in his condition was expected. The Chief Justice gave judgment in June 2011 for damages in the sum of some $1.55m. for Mr. Wilson and $37,500 for his wife, with the defendants to pay the plaintiffs' taxed costs if not agreed. In September 2011, the plaintiffs sought the release of all funds. In October 2011, Mr. A indicated to the plaintiffs that $822,000 was being transferred to their bank account. The plaintiffs queried the missing $59,000 but received no response. In February 2012, Mr. A informed the plaintiffs that he had transferred $30,000 to their account but it was in fact to an old account. The sum was not transferred to the new account until November 2015. Payment of the full sum took so long that complaint was made by the plaintiffs as well as by an American lawyer and doctor retained by the plaintiffs who had not been paid their fees. Complaint was made to the Chief Justice, who wrote to Mr. A six times raising concerns. Mr. A claimed that some delays were caused by his computer crashing, resulting in a loss of information.

The Attorney General's case of “conduct unbecoming” was put under six heads:

(i) Failure to pursue an expeditious resolution of the plaintiffs' case. From 2005 when the first plaintiff's medical condition had settled, there was no good reason why the case was not set down for hearing. From judgment in 2011 until 2021, the details of fees, amounts paid and costs had not been finalized. In the absence of any reasonable explanation, the lack of final resolution after 15 years was unconscionable and brought the administration of justice into disrepute.

(ii) Failure to respond satisfactorily to the plaintiffs' requests for information. This head was not proceeded with because the plaintiffs did not wish to play any further part in the proceedings.

(iii) Failure to pay the entirety of the awarded moneys to the plaintiffs and third parties working on their behalf. Of the total damages awarded in June 2011 ($1,588,724), $707,142.86 had already been paid to Mr. A as interim payments. In November 2011 the outstanding balance of $881,588.14 was paid to Mr. A, who thereafter made a series of payments to the plaintiffs totalling $1,270,131.53, leaving $318,592.47 outstanding. Mr. A claimed he paid sums totalling $250,118.42 for medical expenses and disbursements. That left $68,474.91 outstanding in March 2017.

(iv) Failure properly to account to the plaintiffs for all moneys awarded to them. In November 2011, the plaintiffs requested a final account of the damages and costs awarded to them. To date, Mr. A had not provided a complete breakdown of the moneys paid to him to cover their medical expenses. The plaintiffs had received no clear information as to what sums were received by way of damages as distinct from costs. No breakdown of medical bills had been provided nor any indication as to whether payment for such bills was to come from damages or costs. Despite repeated requests, the plaintiffs had not received an invoice for Mr. A's fees and disbursements or a final account of all moneys received by him.

(v) Failure adequately to safeguard his records and information relating to the case. Mr. A was required to maintain and preserve records relating to the plaintiffs' action so that costs incurred and time sheets justifying fees could be identified. He said records had been lost, thus indicating that he had failed to keep secure records.

(vi) Repeated failure to respond to requests by the Chief Justice relating to the conduct of the case. Mr. A had failed, satisfactorily or promptly, to respond to repeated requests from the Chief Justice.

In response, Mr. A stated inter alia that personal injury cases could typically take several years to resolve and that Mr. Wilson prolonged the period by providing misleading information. The plaintiffs did not make repeated requests about the slow progress of their case. Apart from a portion of his legal fees, he had withheld no part of the damages awarded. When he had said that he lost all the information on his computer after a crash, he meant he lost the original fee note but retained the data to enable a reconstruction. His computers were appropriately backed up.

Legislation construed:

Legal Practitioners Act (2015 Revision), s.2: The relevant terms of this section are set out at para. 11.

s.7(1): The relevant terms of this subsection are set out at para. 11.

C. Allen for the Attorney General;

Mr. A appeared in person.

1 Worsley, Ag. J.: As with professional bodies the world over, codes of conduct exist to regulate the professional activities of attorneys-at-law.

That applies no less in the Cayman Islands where there is a high proportion of top-calibre lawyers. To maintain public confidence in the rule of law it is essential to ensure that all who practice in this field comply rigorously with the code of conduct (“the code”) for their profession.

2 These proceedings concern allegations of a breach of the code here in the Cayman Islands, where, thankfully, such proceedings are virtually unheard of. The parties to the proceedings are the Attorney General's Chambers (“the AG”) and “Mr. A,” an attorney-at-law admitted into practice on April 10th, 1995. This hearing relates to Mr. A's handling of a running-down action. It turned out to be an unusual case. It was one where, according to Mr. A, he was justified in taking 10 years to get to judgment in a damages-only matter, he was paid only half his fees, he presented no fee note, he drew up no final account, his computer records crashed, there was no written termination of his retainer and where the Chief Justice unjustifiably criticized him.

Authority of court

3 There is no dispute that I am duly authorized to sit as a judge in this matter even though I have passed the usual retirement age of 70. I first heard applications and set timetables in this case in 2017, during the tenure of my appointment as an acting judge of the Grand Court before I reached 70 and as such was seised of the case. I sit with the specific authorization of the Chief Justice to determine this matter and have been given a Government contract of employment authorizing me to sit as a judge in the Cayman Islands from September 15th, 2020 until March 13th, 2021.

4 As the attorney at the centre of these allegations is well known in the community, it has been important that a judge from out of the jurisdiction with no knowledge of him or his practice deals with every aspect of this matter. The nature of the complaints were communicated in writing to Mr. A on March 30th, 2017 and he has throughout been aware of his right to call witnesses and make submissions to the court.

Conduct of the proceedings

5 There are no Cayman precedents for the procedural conduct of cases such as this. In March 2017, when I last sat as an acting judge of the Grand Court...