Marshall v Alexander

JurisdictionBarbados
JudgeMason, J.A.
Judgment Date09 May 2017
Neutral CitationBB 2017 CA 7
Docket Number42 of 2015
CourtCourt of Appeal (Barbados)
Date09 May 2017

Court of Appeal

Gibson, C.J.; Mason, J.A.; Burgess, J.A.

42 of 2015

Marshall
and
Alexander
Appearances:

The Complainant present and unrepresented Ms. Michelle Russell for the Respondent

Mrs. Marguerite Woodstock-Riley QC for the Disciplinary Committee of the Barbados Bar Association

Ms. Donna Brathwaite QC for the Attorney General, Amicus Curiae in association with Ms. Allison Burke

Mr. Patterson Cheltenham QC and Ms. Liesel Weekes for the Barbados Bar Association, Amicus Curiae

Legislation:

The Legal Code of Ethics 1988, R.70. 74, 87, 90(1)

Legal Profession - Professional misconduct — Attorney-at-Law — Mitigation — Whether respondent ought to be suspended from practice for period of time.

Mason, J.A.
Introduction:
1

The Legal Code of Ethics 1988 of the Barbados Bar Association (the Code) governs the professional conduct of attorneys-at-law here in Barbados. Rules 70, 74, 87 and 90(1) provide as follows:

“70. An attorney-at-law shall not retain money he received for his client longer than is absolutely necessary.

74. In the performance of his duties an attorney-at-law shall not act with inexcusable delay, negligence or neglect.

87. In pecuniary matters an attorney-at-law shall be most punctual and diligent, he shall never mingle funds of others with his own and he shall at all times be able to refund money he holds for others.

90(1) Breach by an attorney-at-law of any Rules contained in this Part shall constitute professional misconduct and an attorney-at-law who commits such a breach shall be liable to any one of the penalties which the Disciplinary Committee recommends and which the Court of Appeal is empowered to impose.”

2

The high standard demanded of attorneys-at-law by these rules of the Code should never appear to overawe those who have the honour and privilege to belong to what has always been considered a noble profession.

3

In the matter now before this Court, the Disciplinary Committee of the Barbados Bar Association established under Part V of the Legal Profession Act, Cap 370A (the Committee), after hearing and deliberating a complaint made against Allison Alexander found her guilty of professional misconduct in that she breached rules 70, 74 and 87 of the Code. The Committee recommended that she be suspended from practice for a period of not less than one year.

Background
4

Mr. Cecil Marshall, the complainant, sought the services of Ms. Alexander to complete the sale of his property situated at No. 41 Dairy Meadows, Horseshoe Drive, Holders Hill in the parish of Saint James. At the time, the property was encumbered with a mortgage resulting in the property being distressed. A decision was made to sell the same and the process commenced.

5

The sale was completed early in August 2015. However, when the complainant contacted Ms. Alexander later that month, he was advised that funds were missing from her account but that the matter would soon be resolved. The complainant was later informed that he could collect a cheque from Ms. Alexander's husband on 21 August, 2015.

6

Mr. Marshall made attempts to have the cheque processed but these were futile and concluded with him being advised by his bank that the cheque should be referred to the drawer. After seeking answers, the complainant was informed by Ms. Alexander that she had overpaid some of her clients and that she was currently in the process of recovering said sums from these clients after which he would be paid.

7

This did not materialise. On another occasion, the complainant was informed that Ms. Alexander was in the process of closing the sale of a hotel out of which she would be able to repay the amount owed. On 30 September 2015 Ms. Alexander sent an email to the complainant indicating that there was a delay in the receipt of the funds from her client but that she was working on providing the complainant with an interim payment on 2 October 2015 until the funds were received.

8

Despite this promise, the funds were never repaid to the complainant resulting in him filing a complaint with the Committee against Ms. Alexander.

Report of the Disciplinary Committee
9

The Committee in its final report rehearsed the complaint and the pertinent facts and outlined the evidence of the parties as presented at the hearing.

10

The Committee found (to which there is no dispute) that the sum of $163, 803.88 was due to be paid by Ms. Alexander to the complainant within a reasonable time after 13 August 2015 on demand.

11

It was also determined that Ms. Alexander had provided no details regarding her explanation that she had mistakenly overpaid other clients causing a shortfall in her account. Essentially, the Committee at paragraph 36 of the report, found Ms. Alexander to be in breach of Rules 70 and 87 of the Code and guilty of professional misconduct. It went on further to state in the ensuing paragraph, that the inability to refund the complainant due to such a mistake was at the very least negligent or neglectful and amounted to a breach of Rule 74 of the Code in that she acted with such inexcusable delay that it amounted to professional misconduct.

12

The report concluded that the offence of theft had however not been established on the facts and recommended that Ms. Alexander be suspended from practice for a period of one year.

Written Submissions by Ms. Alexander
13

On 26 August 2016 Ms. Alexander filed submissions on her own behalf in which reliance was placed on the case of R (on the application of Campbell) v General Medical Council (2005) EWCA Civ 250 which set out guidelines on mitigation.

14

Particular emphasis was placed on the dicta in that case which stated that the professional history of the practitioner must be a consideration. In support of this proposition, Ms. Alexander submitted at paragraph 3.4 of her submissions that in 12 years of practice, there were no other instances where her professional conduct had been put under scrutiny. This, together with the fact that responsibility had been readily accepted and that Ms. Alexander did not waste the Committee's or the Court's time, were relevant mitigating considerations when determining the appropriate penalty to be imposed.

15

Thereafter, counsel sought to distinguish other matters dealt with by this Court arising on similar facts. She submitted that the attorney-at-law In the Matter of Dr. Harold Eastmond BB 1995 CA 24 ( Eastmond) was involved in repeated instances of misconduct which, when examined in totality, warranted his name being removed from the Roll of Solicitors. The same could not be said of her, as there was no history of unscrupulous events or trends.

16

Ms. Alexander also suggested that the speed at which this matter was dealt with by the Committee was a factor worth considering. She pleaded that In the Matter of Mortimer Clarke BB 2008 CA 7 ( Clarke), the length of time it took for that matter to be heard facilitated the repayment of the amount owed. Meanwhile, her matter had been speedily addressed resulting in insufficient time for repayment. There was no substantial real or personal property available to be utilised, and in addition, the family home owned solely by her husband had been placed on the market. To date there has been no sale to facilitate payment.

17

Another point which Ms. Alexander advanced was that in Clarke, the professional misconduct spanned nine years unlike a few months as in her case. She submitted that this should be taken into account when determining the appropriate penalty. She requested that a lesser period of suspension be imposed than that recommended by the Committee bearing in mind the financial impact it would have on her and her young family.

The Proceedings before This Court
18

In the proceedings before this Court, counsel for Ms. Alexander, Ms. Michelle Russell, stated that she was relying largely on the written submissions filed by Ms. Alexander. Counsel submitted that she was not attempting to condone the actions of her client. However in mitigation, she asserted that it should be noted that at no point in time when this matter was to be heard did Ms. Alexander waste the Committee's time or that of the Court. Counsel further asserted that Ms. Alexander had admitted her culpability in the initial stages and demonstrated responsibility by her statements of intention to repay.

19

Counsel submitted to this Court that the delay in repayment was further attributed to the publicity this matter had attracted in the media. Counsel claimed that as a result of this, Ms. Alexander had lost some of her clients and her ability to apply for a loan became virtually impossible. Counsel stressed that Ms. Alexander did intend to repay but circumstances did not permit her to do so.

20

Ms. Russell referred to Clarke in which the Committee had taken note of and suggested that Mr. Clarke's forthrightness and cooperation with the Committee should be taken as a mitigating factor by the Court.

21

In urging the Court to be lenient with Ms. Alexander, counsel was mindful of this Court's decision in Clarke at para 43:

“One way in which this Court may best serve and protect the public interest is to ensure Mr. Clarke's absence from the practice of law for a reasonable time.”

22

Counsel referred to this Court's power under s. 22(1) of the Legal Profession Act which allows for suspension in s. 22(1)(c) and for an order for compensation to the complainant in s. 22(1)(f).

Submissions by the Disciplinary Committee
23

Mrs. Marguerite Woodstock-Riley QC, Chairman of the Disciplinary Committee, addressed the mitigating factors raised by stating that it was not a fair assessment to conclude that this was the first instance of misconduct. It was more appropriate to state that this was the first report of such against Ms. Alexander. Mrs. Woodstock-Riley QC contended while repayment is a consideration, it does not remove the fact that an offence took...

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