republic of trinidad and tobagowebopac.ttlawcourts.org/libraryjud/judgments/hc/kok… · ·...
Post on 06-May-2018
223 Views
Preview:
TRANSCRIPT
1
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2008-00560
BETWEEN
HOSEIN’S CONSTRUCTION Claimant
AND
3G TECHNOLOGIES Defendant
Before the Honourable Mr. Justice Vasheist Kokaram
Appearances:
Mr. Terrence Bharath for the Claimant
Mr. Donald Seecharan for the Defendant
JUDGMENT
1. The Claimant has raised an issue of professional ethics. It has taken objection to
Donald Seecharan as counsel for the Defendant and Fariza Seecharan as
instructing attorney at law, continuing to act for the Claimant on the ground that
Mrs. Seecharan is being called as a witness for her own client and that Mr.
Seecharan as counsel is intimately connected to the facts of this case. The law
firm on record for the Defendant is “Shaama Seecharan and Company” with the
two principals being Mr. and Mrs. Seecharan apparent from their firm’s letterhead.
Quite apart from being a witness in this matter, Mrs. Seecharan signed the
Defence and Counterclaim as the attorney on record and certified the truth of the
2
Defence and Counterclaim in the Certificate of Truth as a director of the
Defendant. Throughout the proceedings there is correspondence passing between
the Claimant and the Defendant with references being made directly to the two
attorneys as the directors of the Defendant. The Claimant contends that for these
two attorneys to continue to act for the Defendant would amount to a breach of
Clause 35 Part A, Third Schedule of the Legal Profession Act (“The Code of
Ethics”).
2. Clause 35 Part A of the Code of Ethics provides as follows:
“An attorney at law shall not appear as a witness for his own client except
as to merely formal matters or where such appearance is essential to the
ends of justice.
If an Attorney is a necessary witness for his client with respect to matters
other than such as are merely formal, he should entrust the conduct of the
case to another attorney of this client’s choice.”
3. Contrary to the submission made by the Defendant, this is not a mere formal
objection. The Court must take notice of any allegation of a breach of the code of
ethics by attorneys at law who, being officers of the Court, fall within the purview
of the Court’s supervisory jurisdiction.
4. Furthermore the Code of Ethics sets out the standard of the practice of law in this
jurisdiction. A Court must be careful to demand no less of a standard of the
attorney so as to preserve the honour and dignity of the profession and the
proper administration of justice. As a matter of public policy the court cannot
countenance a lesser standard relating to practice than those which the attorneys
have set themselves for the regulation of their profession. Sopinka J. in
MacDonald Estate v. Martin [1990] 3 S.C.R. 1235 referring to the inherent
jurisdiction to remove from record solicitors, stated:
“Their jurisdiction stems from the fact that lawyers are officers of the court and
their conduct in legal proceedings which may affect the administration of
3
justice is subject to this supervisory jurisdiction. Nonetheless, an expression
of a professional standard in a code of ethics relating to a matter before the
court should be considered an important statement of public policy.”
5. This prohibition in rule 35 of the Code of Ethics underscores the multifarious set
of duties and obligations of the attorney at law. The attorney owes corresponding
duties to his client, to the court and to the public/administration of justice. It is an
ongoing “trilemma” and one of the hallmarks of the profession, underscored by
rule 35, is the ability of the attorney at law to maintain his impartiality and
independence. To be truly considered as giving “counsel” he must be able to,
give fair, independent and objective advice to his client and similarly can be
trusted do the same to the court. It is this impartiality cutting across any blind
allegiance to his client which is an important element of the rule of law. Lord Reid
in Rondel v Worsley [1969] 1 AC 191, 227 stated:
“As an officer of the court concerned in the administration of justice [a
legal practitioner] has an overriding duty to the court, to the standards of
his profession, and to the public, which may and often does lead to a
conflict with his client’s wishes or with what the client thinks are his
personal interests.”
6. Lord McMillan in “The Ethics of Advocacy” alluded to the multifarious duties of
the attorney
“The code of honor of the bar is at once its most cherished possession and
the most valued safeguard of the public. In the discharge of his office the
advocate has a duty to his client a duty to his opponent a duty the court a
duty to the state and a duty to himself. To maintain a perfect poise amongst
these various and sometimes challenging claims is no easy feat.
Transgression of the exorable obligations which these duties imposed upon
the advocate is not like making a mere mistake in business it involves
infringement of his moral duty.”
4
Lord Brown Wilkinson, Hall v Simons [2000] 3 AER 57 usefully highlights this
trilemma and makes the point that the demands of the client do not always trump
that of the discharge of the attorneys duty to the court and to the administration
of justice.
“Lawyers conducting litigation owe a divided loyalty. They have a duty to their
clients, but they may not win by whatever means. They also owe a duty to the
court and the administration of justice. They may not mislead the court or
allow the judge to take what they know to be a bad point in their favor. They
must cite all relevant law, whether for or against their case. They may not
make imputations of dishonesty unless they have been given the information
to support them. They should not waste time on irrelevancies even if the client
thinks that they are important. Sometimes the performance of these duties to
the court may annoy the client.”
7. This obligation to maintain this independence is imbedded in the Code of Ethics.
Part A of the Code of Ethics :
r3: the attorney must “scrupulously preserve his independence in the
discharge of his duties.”
r37: “An attorney-at-law shall endeavour always to maintain his position as
an advocate and shall not either in argument to the court or in address to
the jury assert his personal belief in his client’s innocence or in the justice
of his cause or his personal knowledge as to any of the facts involved in
the matter under investigation.”…
In Part B rule 3 requires the attorney not knowingly mislead the court or to
withhold facts in order to establish the guilt or innocence of the accused.
8. These rules highlight the attorney’s duty to the Court and that he/she must not be
so wedded to his client’s case to affect his ability to impartiality present the facts
and law of the case for the Court’s determination. The Code of Conduct
Canada summarises this obligation as follows: “A barrister must not act as the
5
mere mouthpiece of the client or of other instructing solicitor and must exercise
the forensic judgments called for during the case independently, after appropriate
consideration of the client’s and the instructing solicitor desires where
practicable.”
9. In determining the rationale for the the rule which prohibits a lawyer from being
both counsel and witness Prof. Enker in "The Rationale of the Rule that
Forbids a Lawyer to be Advocate and Witness in the Same Case"1 stated:
“The public often questions how it is that a lawyer is prepared to argue the
cause of either side to a dispute regardless of his personal beliefs.
Sometimes the question is put more pointedly: how can a lawyer
represent a particular unpopular client or a cause he does not personally
support in his private nonprofessional life, and how can he nonetheless
truly do his best to enable his side to prevail? Isn't the lawyer merely
selling himself to the highest bidder? Many find difficulty with and suspect
the role of the lawyer in representing a criminal defendant he knows to be
guilty. It is precisely because the lawyer is not a witness who personally
vouches for what he says, but an advocate whose arguments is
addressed to reason and stand or fall as they are objectively persuasive,
that he is able to represent either side of the issue.
It is, thus, this objective quality of the lawyer's role that renders him
independent of his client no matter whom he represents, which, in turn, is
what enables the lawyer to represent the criminal, the weak, the socially
and politically unpopular — those elements of society whose protection
lies in the demand that reason rather than force and emotion be the test of
their rights. And a clear understanding of the uniqueness of the lawyer's
role is what commands attention to the reason contained in his arguments
and forces his client's adversary to respond on the same basis.
1 (1977), vol. 357, American Bar Foundation Research Journal 455. At pp. 464-65,
6
Under this rationale, the rule under consideration is properly one of
professional ethics. Its concern is not protection of the client's interests but
the integrity of the attorney’s professional role and the preservation of its
uniqueness.
This proposed new understanding of the basis for the rule against being
advocate and witness in the same case has several ramifications. It
suggests that contrary to recent expressions the rule should not be made
subject to the client's consent. Nor would the consent of the other parties
to the proceedings furnish any grounds for allowing the dual appearance.
The rule is not designed to protect the client's interests or those of the
adversary. Its purpose is to protect systemic interests; the client's or
adversary's consent is irrelevant.”
10. The rule is therefore an important element of the due administration of justice
and the rule of law. The counterpoint to this of course is the client’s right to
representation by his attorney of choice. However the Court must weigh carefully
the private desire of the client to choose its attorney (who is also a director and
also giving evidence for the client) and the protection of the “systemic interests”
and obligations of the attorney to the Court. .
11. In this case, the Court is about to embark upon a trial of the Defendant’s
counterclaim. This is a dispute arising out of a building contract dated 8th
December 2005 made between the parties for the construction of a seven storey
commercial building on behalf of the Defendant. The counter claim makes
several allegations of breaches of the said contract including errors, defects and
bad workmanship in the execution of the contract. The counterclaim exceeds
$7million for the payment of a performance bond and consequential loss. The
attorneys in this case for the Defendant are also the directors of the Defendant
Company. There are 4 witnesses for the Defendant with Mrs. Seecharan having
filed a witness statement as the director/secretary of the Defendant. She
7
appears to be the main witness for the Defendant. The trial is set to proceed for
three days 14th to 16th February 2012.
12. In an earlier decision I had dismissed the claim of the Claimant against the
Defendant for monies due and owing to it under the building contract after
hearing a preliminary issue as to whether that debt was assigned to the Republic
Bank Limited. At that trial the attorney on record also gave evidence and counsel
presented the case for the Defendant. I recall an objection being taken by the
Claimant’s previous attorney however because of the nature of the trial, it being a
matter of examining the effect of a letter to determine whether it had validly
assigned the debt to the Bank and that the objection was taken almost mid
stream during the course of the cross examination, I deferred to expediency in
overruling the objection. However I do recall having to temper the robust cross
examination by counsel over matters in which he had a personal involvement
with the witness being cross examined.
13. The level of the attorney’s involvement in this trial of the counter claim is now
more pronounced. The instructing attorney at law for the Defendant, who is also
a director of the Defendant, has filed a witness statement of some 89 paragraph
with copious exhibits. It sets out comprehensively her personal dealings with the
Claimant and the introductory paragraphs of her witness statement explain that
she was in fact the directing mind of the Defendant or the person who took on the
day to day dealings with the Claimant in the execution of the contract. Counsel
for the Defendant is also referred to in the documents and exhibits attached to
the statement and is in fact referred to by name in the Claimant’s witness
statement. In several correspondence in these proceedings the “client” (that is
the Defendant) is described as “Mr. and Mrs. Seecharan”. Key issues of fact will
arise which are based on the several documents, e mails and records of
conversations in which both attorneys may be involved. The trial itself will be a
complex fact finding exercise. The credibility of the attorney at law will like any
other witness be of course open to question and criticism under cross
examination. In that context one certainly wonders to what extent counsel for the
8
Defendant, the partner of the legal firm on record and who will be leading the
evidence in chief of his partner in the law firm and director of the client, can
objectively discharge his duties to this Court.
14. There is learning to suggest that a counsel ought not to represent a client where
a partner of his firm has given evidence. There are American authorities that
suggest that it is no longer acceptable practice for counsel to conduct a trial
where a partner, associate or employee is going to give evidence at the trial.2
“A counsel who appears in court is expected to serve the interests of his
client, but must also exhibit reasonable objectivity in advancing the case
for his client. The role of counsel, in my view, is compromised when a
member of the advocate's firm is called upon to testify for the client.
Counsel is expected to be loyal to his firm member who is now a witness.
How can counsel properly discharge his obligation as counsel if he is, in
fact, honour bound to be loyal to a witness? How can counsel in such
circumstances be expected to argue an issue of credibility with respect to
the evidence of his firm member? Furthermore, the client may also ask
whether the counsel's loyalty to the witness surpasses his loyalty to the
client's interests. Harvard Investments Ltd. v. Winnipeg (City) 1994
CarswellMan 127 Manitoba Court of Queen's Bench, 1994.
15. The Claimant relied on the following authorities in support of his proposition that
both attorneys must withdraw ex parte Ezekiel [1941] 2AER 546, Borneo
2 See annotation by David B. Harrison J.D., entitled "Disqualification of Attorney Because Member of
his Firm is or Ought to be Witness in Case — Modern Cases", 5 A.L.R. 4th 574 (1981). Healthcrest Inc. v. American Medical International Inc., 605 F. Supp. 1507 (N.D. Ga., 1985), the United States District Court, N.D. Georgia, found that a law firm was barred from conducting a case where members of the firm drafted the documents which gave rise to the litigation. In Jackson v. Russell, 498 N.E. 2d 22 (Ind. App. 1st Dist., 1986), the Indiana Court of Appeals upheld a trial judgment where, one week into a trial, lead counsel was barred from continuing to conduct the action where members of his firm were called as witnesses at the trial. In the matter of Re Bartoli Estate, 533 N.Y.S. 2d 324 (A.D. 2nd Dept., 1988), the New York Supreme Court, Appellate Division, upheld a decision barring an attorney from conducting a trial of the validity of a will where a member of his firm had drafted the previous will and would be a necessary witness at the trial.
9
Helicopters v Sabahair Aviation No K22 93 of 2009. In that case the Malaysian
High Court stated:
“It is a well settled principle of law that a litigant has a right to be
represented by a counsel of his choice. However the right to be
represented by counsel of his choice is not an absolute right. A litigant can
only claim the right to be represented by a counsel of his choice if the
appointed counsel is willing and able to represent the litigant.”
16. In the “Hamilton K”3 Justice Sealey held that the evidence given by an attorney
for her client was more than mere formal matters. They were matters germane to
the matter at hand. The affidavit was deemed to be improper as it ran afoul of
rule 35(1) A of the Code of Ethics.
17. The attorney for the Defendant has countered that the objection raised by the
Claimant is in itself objectionable as it smacks of conduct which is in breach of
the code of ethics. He relied on rules 41.1, 41.2. 22.3 and 24 of the Code of
Ethics. He suggested that there was an ulterior motive to these objections
without articulating what that ulterior motive was. The claim he contends involves
a corporate entity and there is no justification to refer to the individuals Mr. and
Mrs. Seecharan in this case. This begs the question why Mrs. Seecharan is
giving evidence in this case. He further contended that the claim was conducted
up to trial thus far without any objection and that in any event the Claimant is
stopped by the principle of res judicata as this Court previously overruled a
similar objection.
18. I do not think that it is a breach of the Code of Ethics for an attorney to
legitimately draw to the Court’s attention a concern in relation to the attorneys
continued conduct of the case. See rule 1 Part A. Further I do not consider
myself bound by any previous ruling made at the trial of a preliminary issue. We
are now far advanced at the stage of a full trial of the counter claim considering
3 In The Master, Officers and Crew on Board Motor Vessel “Hamilton K” v The Owners of the Motor Vessel
“Hamilton K” HCA A5 of 1995.
10
the extensive evidence to be adduced by attorney on record for the benefit of her
client. It matters not in my mind that she is a director of the company. More
reason for her to withdraw so as not to compromise her impartiality and
independence as an attorney at law acting for a client.
19. In dealing with this matter and balancing the respective rights of the client to its
attorney and the obligations of the attorney to this Court and the “systemic
interests” of the administration of justice I have taken into account all the
circumstances: the stage of the proceedings, the significance of the evidence to
be led, the impact of removing counsel on the party’s right to be represented by
counsel of choice, the likelihood of a real conflict may arise, and the connection
or relationship between counsel, the prospective witness and the parties involved
in the litigation.
20. I am of the view that Mrs. Seecharan ought not to be a witness in this matter and
remain on the record. It is objectionable for the instructing attorney at law to give
this evidence while remaining an attorney on record for this party. It is a breach
of rule 35 Pt A Code of Ethics. It is either the witness statement is withdrawn or
the attorney withdraws from acting for the Defendant while she is a witness in
this matter. In that event I will grant her permission to come off record for the
duration of the case with the conduct of the case being entrusted in the care of
another attorney at law. In that case the attorney will be compliant with rule 35
that if an attorney is a necessary witness for his client with respect to matters
other than such as are merely formal, he should entrust the conduct of the case
to another attorney of his client’s choice.
21. Second with regard to Mr. Seecharan, there is no clear breach of rule 35. Mr.
Seecharan is not appearing as a witness in these proceedings for his client.
However the principle underpinning the rule as I was at pains to set out in this
judgment will dictate that generally attorneys should not act as counsel where
either (a) a partner in his firm is giving critical evidence in support of the client’s
case or (b) where he is intimately connected to the facts before the Court. The
appearance of counsel in both those matters impact on his impartiality and his
11
ability to discharge his duties to the court. However in this case I appreciate that
we are at an advanced stage of the proceedings with the trial set for next week
and have weighed the effect that an order at this stage will have on another
matter of policy, trial date certainty. Furthermore there are several procedural
applications yet to be heard which must now be heard before the trial
commences. Those applications include an application for summary judgment by
the Defendant and applications to strike out portions of witness statements of
both parties. I will not therefore ask counsel to withdraw from this case and allow
him to proceed with those procedural applications. Perhaps when the dust settles
there may be no need for a trial or the evidence may be significantly “sanitized”.
If however we are to embark on a trial on the present state of the evidence I
strongly advise counsel to at the very least obtain co-counsel to conduct the
cross examination or I will set firm parameters for counsel in which to act and
that he discharge his duties to the court and his client objectively and impartially.
If he crosses the line I will have no hesitation but to put a halt to the trial and ask
that he too withdraw.
22. Costs are reserved.
Dated 7th February 2012
Vasheist Kokaram
Judge
12
top related