Section 7 of the Legal Practitioners Law (2015 Revision) and Mr. A, Attorney at Law
| Jurisdiction | Cayman Islands |
| Judge | Paul Worsley |
| Judgment Date | 26 February 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No: LPDC1 of 2017 |
The Hon. Justice Paul Worsley (Actg.)
Cause No: LPDC1 of 2017
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Civil Division — Section 7 of the Legal Practitioners Act—Disciplinary Proceedings.
Ms. Claire Allen of the Attorney General's Chambers
Mr. A in Person
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.
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 ██████. 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 criticised him.
There is no dispute that I am duly authorised 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 seized of the case. I sit with the specific authorisation of the Chief Justice to determine this matter and have been given a Government Contract of Employment authorising me to sit as a Judge in the Cayman Islands from 15 th September 2020 until 13 th March 2021.
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 30 th March 2017 and he has throughout been aware of his right to call witnesses and make submissions to the Court.
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 of the Cayman Islands the Solicitor General, on behalf of the Attorney General's Chambers asked to see me in Chambers to discuss the institution of disciplinary proceedings and requested guidance on procedure in this unfamiliar territory. I directed that our meeting be tape recorded so it was available for all parties. A copy has been provided to Mr. A. He has submitted that at that meeting I appeared to act as Judge and prosecutor in advising the Attorney General's Chambers as to the steps to take to initiate these proceedings. He has further contended that the withdrawal of the Plaintiffs from the proceedings (they having supplied statements to the AG in 2016) so they are not now available for cross examination, is fatal to the AG's case. If that be right it would mean that witness unavailability would abort disciplinary proceedings however meritorious. That would be a very surprising position. He submitted that it would be an abuse of the process of the Court for this hearing to take place. The Court considered his arguments and found no merit in them.
The Court has considered whether a hearing conducted by Zoom with the parties in Cayman and Judge in the UK is appropriate. The Zoom link is secure. The case depends upon a mass of documentation. There was potential evidence by Zoom from witnesses outside the jurisdiction. The Chief Justice invited me to come to Cayman to hear this case in person. Mr. A submitted he would prefer to make submissions in person. These are all persuasive considerations.
I have concluded, not without regret — as I sit in my study in Yorkshire looking out over a bleak and cold landscape — that the present Lockdown in the UK will prevent me travelling to the Cayman Islands for the foreseeable future. The original Directions Hearing was now almost four years ago. The case which is the backcloth to this hearing started life in 2001 with Mr. A being retained as the Plaintiffs' Attorney early in 2002. It has taken almost twenty years to reach this stage. I see no good reason for further postponement. It now transpires that the witnesses who might have given evidence by Zoom from the USA will not now do so. That potential complication is therefore removed.
Application was made in 2017 for all proceedings to be conducted in private with no reporting of the charge or evidence. There are no precedents. I have applied the general common law approach. Is it necessary in the interests of justice? Is there prejudice to either side?
I have heard submissions from both sides. The lawyer concerned is a well-known Attorney in this small community. If it were known that he was to be tried for disciplinary matters then, whatever the outcome, his practice would likely be damaged and financial hardship follow. I am satisfied that I have the power to direct that these proceedings be conducted in private and have so directed.
The Charge against Mr. A is set out in the AG's Statement of Disciplinary Charge dated 30 th March 2017. It states:
“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 Legal Practitioners Act (2015 Revision), by s.2 defines ‘a Judge’ as a person appointed under the Cayman Islands Constitution Order 2009 to act in the capacity of Judge in the Cayman Islands. By s.7(1) such Judge shall have power, “ for reasonable cause shown”, to suspend any Attorney from practising as such during any specific period or to be struck off the Court Roll. By s.7(2) before a Judge takes such action as is laid down in s.7(1) he shall communicate or cause to be communicated in writing to the attorney-at-law concerned, the nature of the complaint against him and such attorney-at-law shall be entitled to call witnesses and to be heard. Section 8 provides for a right of appeal to the (Cayman Islands) Court of Appeal (CICA).
There is helpful guidance to be gleaned from the authorities as to what amounts to ‘conduct unbecoming’.
In Myers v Elman 1 Lord Wright said:
“It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duties to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice.”
In the Cayman case of AG v Carbonneau & Hartog 2 Sanderson J said:
“It is accepted that the Court has jurisdiction to control the officers of the Court and to do so in a summary way. It is also agreed that the Court may do so when the remedy sought is disciplinary in nature.”
In the context of medical misconduct it was said in Roylance v GMC No 2 3
“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances.”
In re HA Grey 4 Lord Esher said:
“If a solicitor obtains money by process of law for his client, quite irrespective of any legal liability which may be enforced against him by the client, he is bound, in performance of his duty as a solicitor, to hand it over to the client unless he has a valid claim against it.”
Guidance is also to be found in the Code of Conduct for Cayman Attorneys:
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(a) Rule 1.01.3 obliges an attorney to refrain from conducting himself in a manner which is unbecoming to the profession or otherwise may be deemed unprofessional.
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(b) Rule 1.01.4 obliges an attorney not to conduct himself inconsistently with the interests of his client.
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(c) Rule 3.03 requires an attorney to keep accounts which clearly distinguish the financial position between himself and his client. He must ensure that he is at all times able to account, without delay, to clients for all money held or paid by him on behalf of the client. Furthermore he is obliged to preserve, for at least 6 years from the date of the last entry therein, all accounts, books, ledgers and records maintained in relation to the client's affairs.
The Code incorporates the IBA 5 Principles on Conduct for the Legal Profession namely ‘honesty, integrity and fairness’
In Bolton v The Law Society 6 the Master of the Rolls said:
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal”.
Mr. A accepts that if the AG's allegations are proved, the Court would be entitled to conclude that he acted unprofessionally.
There is no question that the burden of proving the allegation rests upon the AG who lays the charges. But what is the standard of proof?
There are, as I have observed, no precedents in this field. I have considered the UK BSB...
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