DANIEL V. CHANDRADEVA

001-SLLR-SLLR-1994-V2-DANIEL-V.-CHANDRADEVA.pdf


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Daniel v. Chandradeva
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DANIEL
v.
CHANDRADEVA
SUPREME COURT.
AMERASINGHE, J.•
WADUGODAPITIYA J, ANDWIJETUNGA, J.
S.C. RULE 1/93(D)
NOVEMBER 04,1993, MAY 31, 1994, AUGUST 15 AND 20, 1994.
Attorney-at-Law – Duties to client on filing proxy – Instructing Attorney -Discourtesy to Court – Supreme Court (Conduct of and Etiquette for Attorneys-at-law) Rules of 1988 (Rules 15, 16 and 28) – Panel of Professional PurposesCommittee of the Bar Association – Judicature Act, No. 2 of 1978, Section 42(2)- Deceit – Malpractice – Criminal Breach of trust – Moral turpitude – Standard ofproof – Is failure to attend court because of work in another Court or non-paymentof fees an acceptable reason? – Absence owing to circumstances beyondcontrol.
One Daniel was sued on a liquid claim by way of summary procedure. Danielgave a proxy to Mrs. Subramaniam, Attorney-at-Law and her assistant Raviraj.The proxy was filed in Court on 13th January, 1988. Subsequently Daniel wasintroduced to another Attorney-at-Law Panditharatne and revoked her proxy.Panditharatne got a fresh proxy in his name but handed over the case to therespondent Chandradeva. Chandradeva amended the proxy given toPanditharatne by crossing his name and substituting her name and filed it inCourt on 22 March 1968. She thus became the registered attorney on recordbetween 22.3.1988 and 06 August, 1992. On 23.3.1988 she found F. C. Pereraappearing for Daniel and seeking permission to file answer. The Court orderedwritten submissions to be filed on 04th May, 1988. No written submissions werefiled on 04th May, 1988 and the respondent was absent from Court. The Courtreserved order for 06.6.1988. The Respondent was absent again and the Courtissued notice for 27 June, 1988. On this day respondent was absent but Attorney-at-Law Welcome appeared and asked for a postponement. The Court fixed11 July 1988 as the final date for written submissions. No written submissionswere yet filed though Welcome appeared again. The Court fixed 19.8.1988 fororder. The respondent claimed she retained Welcome, but her fees were not paid.She admitted receipt of Rs. 750/- from Daniel but said she paid this toParathalingam to prepare written submissions. The Report of the Panel of the
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Professional Purposes Committee of the Bar Association on the complaint ofDaniel was that the respondent had committed 'acts of (a) deceit; and (b)malpractice; and/or (c) crime (criminal breach of trust) under section 42(2) of theJudicature Act No. 2 of 1978.'
Discourtesy to Court is much more than a matter of good manners. It isaxiomatic that every attorney must encourage respect for the administration ofjustice by treating the courts and tribunals of the country not only with candourand fairness, but also with respect and courtesy. An attorney who is discourteousto Court acts in a manner prejudicial to the administration of justice in that heundermines the work of the court. He renders himself unfit to be an officer of theCourt. As an officer of the Court, and as a privileged member of the communitywho has been conditionally allowed to practise his profession to assist in theadministration of justice, every attorney must act with courtesy to Court. It is aduty recognized by Rule 15 of the Supreme Court (Conduct of and Etiquette forAttorneys-at-Law) Rules of 1988.
(a) The relationship of attorney and client is much more than an ordinarycontractual relationship. It does not terminate automatically on the non-paymentof fees. Nor can it be abruptly terminated. An attorney is ordinarily justified inwithdrawing if the client fails or refuses to pay or secure the proper fees orexpenses of the attorney after being reasonably requested to do so, provided hisright of withdrawal is not exercised at a moment at which the client may beunable to find other legal assistance in time to prevent damage being done. Theattorney must give his client reasonable warning that he will withdraw unless theclient fulfils his obligations.
(b) The respondent gave no warning of her inability to continue theprofessional relationship on account of the client's failure to pay her fees. If shewas unwilling to continue the professional relationship on account of the failure ofthe complainant to pay her fees, she should have taken steps to have her proxyrevoked after warning the client and giving him a reasonable time to appointanother registered attorney. On the other hand, the respondent's conduct byappearing for him from time to time shows that she had no intention ofwithdrawing altogether from the case. But on other occasions she abandonedhim altogether or left him unrepresented. She did so in violation of the contractualduties undertaken by her in the proxy and in violation of her professionalobligations prescribed by Rule 16 of the Supreme Court (Conduct of an Etiquettefor Attorneys-at-law) Rules of 1988 whereunder ‘where the services of an
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Attorney-at-Law have been retained in any proceedings, … it shall the duty ofsuch Attorney-at-Law to appear at such proceedings, unless prevented bycircumstances beyond his control*. The phrase 'circumstances beyond hiscontrol" should be strictly interpreted. In general, the unexpected inability of theAttorney to attend Court for good reasons, supported by sufficient proof which theCourt in its discretion considers adequate, would constitute circumstancesbeyond the control of the Attorney. Assuming that her version that she retainedWelcome because she had work in another Court to be true, her absence wasunexcusable. Failure to attend Court because of work in another Court is not anacceptable reason. The respondent ought not to have accepted conflictingprofessional engagements. It was not her case that the conflicts arose as nodoubt they sometimes do, on account of circumstances beyond her control.
Even an instructing attorney has a right of audience and must appear in termsof his or her undertakings to the client. An Attorney appointed by proxyformulated in terms of the Civil Procedure Code has every right to conduct thecase in Court. Where an Attorney intends to function in a contentious civil matteronly as a Registered Attorney, and not also as Counsel, he or she should ensurethat an Attorney who is to appear as Counsel is retained and instructed.Otherwise the Registered Attorney would be acting in contravention of Rules 15and 16 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law)Rules of 1968.
Having asked Welcome to obtain a postponement, it was her duty to ascertainwhat the decision of the Court was in response to his application, from Welcome,or by examining the Journal Entries.
The fact that the Court had allowed the defendant to file answerunconditionally is no excuse for the misconduct. An act or omission is eitherproper or improper at the time it was done and not by reference to itsconsequences.
An Attorney should have and maintain full and accurate records so thatmonies paid or entrusted to him could be accounted for. He should have properlywritten books of account showing among other things, the amounts of receiptsand disbursements against relevant dates and particulars of receipts anddisbursements. The respondent had no such records. She admitted she receivedRs. 750 and said she paid it for written submissions but has failed to establish thiswith any records. Rule 28 of the Supreme Court (Conduct of and Etiquette forAttorneys-at-Law) Rules of 1988 states, "Attorneys-at-Law shall not appropriateany funds of his client held by him in trust for a specific purpose except with the
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permission of the client*. Respondent has violated this provision by appropriatingthe sum of Rs. 750 for her own purposes rather than the purpose intended byDaniel. She erroneously presumed that F. C. Perera would prepare the answer.The respondent has been guilty of deceitful conduct and a breach of trust thatwas criminal in nature. The respondent is unfit to be a member of the legalprofession.
In disciplinary proceedings against an Attorney-at-law, proof beyondreasonable doubt is not necessary but something more than a balancing ofscales is necessary to enable the Court to have the desired feeling of comfortablesatisfaction. A very high standard of proof is required where there are allegationsinvolving a suggestion of criminality, deceit or moral turpitude.
Cases referred to:
Rondel v. Wbrstey[1967] 3 All E.R. 993,1033.
Herber v. /tend (1821) 9 Price 50.
Swannel v. E///s(1823) 1 Bing. 347.
Courtney v. Stock (1842) 2 Dr. & War. 251.
Ranaweera v, Jinadasa and Gunapala S.C. Appeal 41.91 – S.C. Minutes of27.03.92.
Law Society of New South Wales v. Starky, C.A. 205/97 New South WalesSolicitors' Manual (4131).
Rule under section 42(2) of the Judicature Act No. 2 of 1978 against Attorney-at-Law of the Supreme Court.
Rohan Sahabandu for respondent.
N. R. M. Daluwatte P.C. with G. Candappa P.C. and Dr. J. Wickramaratne for theBar Association of Sri Lanka.
A. S. M. Perera, Deputy Solicitor-General as amicus curiae.
Cur. adv. vult.
November 23,1994.
AMERASINGHE, J.
On 26 October 1987, an action was filed in the District Court ofColombo invoking the provisions of Chapter 53 of the Civil ProcedureCode relating to the summary procedure on liquid claims, for therecovery of a sum of Rs. 141,051 from D. E. Daniel, the Complainant
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in the matter before this Court. A document of appointment as aregistered attorney in terms of the Civil Procedure Code, usuallydescribed as a ‘proxy", dated 12 January 1988 (D1), was given byDaniel to Mrs. S. Subramaniam and her assistant N. Raviraj andtendered to Court on 13 January 1988. Subsequently, Subramaniamintroduced Daniel to another Attorney-at-Law, Mr. L. Panditharatne,because she was too busy with other engagements to undertakeDaniel’s work.
On 22 March 1988, on her way to Court, the respondent metMr, Panditharatne, who had explained that he was “in a difficulty”,and requested her to “help him by appearing in the case”. Therespondent says she "took up this matter" “just to oblige"Mr, Panditharatne, whom she had known from the time she was a lawstudent. She had not met the client before this time, Panditharatnehanded her two papers: the proxy intended to be filed on behalf ofDaniel (C2), and the revocation of the proxy of Subramaniam and herassistant, Raviraj. The respondent struck out Panditharatne’s nameand address in the 'proxy', and inserted her own name and address.The printed proxy form is filled in black ink; whereas the alterationsand the signature of the client, Daniel appear in blue ink. The JournalEntries relating to the proceedings in Court on 22 March 1988 showthat the ‘proxy* of Subramaniam was revoked, and that the proxy ofChandradeva (the respondent) had been filed.
The registered Attorney on record between 22 March, 1988 and6 August 1992 was Chandradeva, the respondent. I am unable tounderstand the relevance of the question raised by learned Counselfor the respondent In his written submissions: “Is there a valid legaland binding contract between a client and his Attorney-at-Law if he isnot properly retained?", for there was no dispute that the professionalservices of the respondent had been engaged, notwithstanding thehighly unsatisfactory way in which the document of appointment wasamended. The respondent herself amended the proxy and filed it inCourt. The proxy, which is in the standard prescribed form, not onlyempowered the appointed attorney to act for her client, but alsoimposed the usual contractual obligations on the attorney. Attorneyswho accept appointments as Registered Attorneys would do well,
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from time to time, to read what a proxy states. In addition to beingliable for resulting toss on account of a breach of contractualobligations, a Registered Attorney who fails to ensure that all thingsexpected of him or her by reason of his or her appointment are donepromptly, conscientiously and with reasonable competence, wouldbe guilty of failing to act with due diligence. He or she wouldtherefore be liable for the contravention of Rule 15 of the SupremeCourt (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988.From her evidence, the respondent appeared to be quite consciousof the grave responsibilities she bore as a Registered Attorney. Inthe circumstances, the casualness with which so importantan instrument as a proxy' seems to have been regarded isastonishing.
Learned Counsel for the respondent in his written submissionssuggested that the failure of the respondent to appear in Court “onlyamounts to being discourteous to Court (only).’ (sic); and he raisedthe question: "If so, in such a circumstance, could a rule be issuedagainst the Attorney-at-Law for not appearing in Court, for not havingperformed his duties on behalf of the client?" It comes as a surprisethat the word ‘only* was used and repeated for emphasis, as ifdiscourtesy was of little or no significance in the matter ofprofessional conduct. Discourtesy to Court is a very serious matter.The rough and rude conduct of an uncouth attorney unaccustomedto following the usual ways of members of the profession who are ofgood repute is always shocking and repellent and deplorable,although it may not amount to professional misconduct warrantingdisciplinary action. However, discourtesy to Court is much more thana matter of good manners. It is axiomatic that every attorney mustencourage respect for the administration of justice by treating thecourts and tribunals of the country not only with candour andfairness, but also with respect and courtesy. An attorney who isdiscourteous to Court acts in a manner prejudicial to theadministration of justice in that he undermines the work of the Court.He renders himself unfit to be an officer of the Court. As an officer ofthe Court, and as a privileged member of the community who hasbeen conditionally allowed to practise his profession to assist in theadministration of justice, every attorney must act with courtesy to
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Court. It is a duty recognized by Rule 15 of the Supreme Court(Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988.
According to the respondent, when she went into court on23 March 1988, she found another Attorney-at-Law, Mr. F. C. Perera,appearing for her client and seeking the permission of Court to fileanswer. The Court ordered that written submissions should be filedby the defendant on 4 May, 1988 and by the plaintiff on 11 May, 1988to enable it to decide whether leave was to be granted conditionallyor unconditionally.
Written submissions were not filed on the 4th of May, 1988 asdirected by the Court. The defendants Registered Attorney, therespondent, was absent on the 4th of May, 1988. The Court reservedits order for 6 June, 1988. However, on the 6th of June, 1988, thedefendant's Registered Attorney was absent again and the Courtissued notice for 27 June, 1988. On the 27th of June, the RegisteredAttorney was not present in Court, but Mr. Welcome appeared for thedefendant and applied for a postponement. The Court fixed the 11thof July 1988 as the final date for the filing of the written submissions.On the 11th of July the written submissions had not yet been filedand the Court directed that the matter be called on the 19th ofAugust 1988 for an Order. The defendant was represented on the11th of July by Mr. Welcome, but the Registered Attorney was absent.
The Registered Attorney explained in her evidence that on 27 Juneand 11 July she had retained Mr. Welcome, Attorney-at-Law, andpersonally paid him to obtain postponements on those two dates.The complainant's position was that he himself retained Mr. Welcomeand paid him. The importance of determining who retainedMr. Welcome is this: if Mr. Welcome appeared at the request ofChandradeva, then her duty to ensure that her client was representedwould have been fulfilled if, having been reasonably satisfied that inthe circumstances the attendance of the registered attorney could bedispensed with, Counsel had agreed to dispense with the attendanceof the registered attorney. On the other hand, if representation hadbeen arranged by the client himself without the knowledge of theRegistered Attorney, her presence could not have been dispensed
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with by Counsel and her absence on the 27th of June and the 11th ofJuly would be culpable. The respondent’s explanation for herabsence on some of the dates was that she had *no instructions”,meaning that she had not been paid her fees. In the circumstances itis highly improbable that the respondent paid Mr. Welcome andretained him. The complainant's version that he himself retainedMr. Welcome, who was personally known to him, is a moreacceptable explanation of how Mr. Welcome happened to appear inthe case.
Learned Counsel for the respondent submitted that an attorney isentitled to be paid for his services. I agree that an attorney is notengaged in a charitable activity and is not obliged to accept anywork unless the client is prepared to meet the expense of litigationand to pay the fees he stipulates. I also agree that the continuation ofthe attorney-client relationship may depend upon the payment of theagreed fees and compliance by the client with the terms andconditions prescribed by the attorney with regard to deposits to meetdisbursements. However, I am unable to accept the submission oflearned Counsel for the respondent that “this litigant simply refusedto remunerate his lawyer. Thus putting the contract to an end.’ Therelationship of attorney and client is much more than an ordinarycontractual relationship. It does not terminate automatically upon thenon-payment of fees. Nor can it be abruptly terminated. An attorneyis ordinarily justified in withdrawing if the client fails or refuses to payor secure the proper fees or expenses of the attorney after beingreasonably requested to do so, provided his right of withdrawal is notexercised at a moment at which the client may be unable to findother legal assistance in time to prevent damage being done. AnAttorney is obliged to protect his client's interests as far as possibleand should not desert the client at a critical stage of a matter whenthe withdrawal would put the client in a position of disadvantage orperil. An attorney should not summarily withdraw from a case ormatter he has undertaken. He must not suddenly decide to cease toact for the client and jettison him. The attorney must give his clientreasonable warning that he will withdraw unless the client fulfils hisobligations. The respondent gave no warning of her inability tocontinue as the Registered Attorney on account of the client’s failureto pay her fees. If she was unwilling to continue the professional
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account of the failure of the complainant to pay her fees, she shouldhave taken steps to have her proxy revoked after warning the clientand giving him a reasonable time to appoint another RegisteredAttorney. On the other hand, the respondent’s conduct shows thatshe had no intention of withdrawing altogether from the case. She didappear from time to time. Either she did so whenever she was paid;or, if we are to accept the respondent’s explanation that she wastrying to help a poor man, whenever she was moved by a feeling ofcompassion. On other occasions, however, she either deliberatelyabandoned her client because she had not been paid or left himunrepresented owing to her unmindfulness of the client's misfortunefrom time to time. She did so in violation of the contractual dutiesundertaken by her in the proxy and in violation of her professionalobligations prescribed by Rule 16 of the Supreme Court (Conduct ofand Etiquette for Attorneys-at-Law) Rules of 1988 which provides that“'where the services of an Attorney-at-Law have been retained in anyproceedings in any Court, Tribunal or other institution established forthe administration of justice, it shall be the duty of such Attorney-at-Law to appear at such proceedings, unless prevented bycircumstances beyond his control.’’
The phrase “circumstances beyond his control’ should be strictlyinterpreted. In general, the unexpected inability of the Attorney toattend Court for good reasons, supported by sufficient proof, e.g. byway of certificates and/or affidavits or otherwise, which the Court inits discretion considers adequate, would constitute circumstancesbeyond the control of an Attorney. The explanation of the respondentin her evidence that she had “no instructions’’ in the sense that shehad not been paid, is a well-known, but deceptive anddishonourable, devise used to obtain postponements not only inthis country but even in England (e.g. see per Lord Upjohn in Rondelv. Worsley (’>). However, it is not a circumstance that would everexcuse an Attorney’s failure to observe his or her duty to appear inCourt.
The respondent in her evidence, and learned Counsel in hissubmissions explained that the complainant was unco-operative andhad failed to give “instructions" in the sense of information relevantfor the preparation of the case. Learned Counsel for the respondent
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said that the professional relationship had broken down"irretrievably". In her evidence the respondent stated that she did nothave the written submissions and therefore thought that herattendance in Court might be detrimental to the complainant.However she correctly acknowledged the fact that if she had noinstructions she ought to have attended Court and so informed Court.It was not a circumstance that excused her absence. As for non-co-operation and the breaking down of their professional relationship, ifa client, when requested, declines or neglects to give the attorneyany instructions after a reasonable time has elapsed since theengagement of his services, or where the client when requested,declines to give such further instructions as may be necessary toenable him to act on behalf of the client, or where the client failssubstantially to fulfil an obligation to the attorney regarding hisservices, after due warning, the attorney should terminate hisservices. The respondent did not warn the complainant. She wascontent to maintain the professional relationship, and thereforecontinued to be liable to fulfil her obligations as the complainant'sregistered attorney. Assuming the respondent's version that sheretained Mr. Welcome to appear on the 27th of June and the 11th ofJuly to obtain postponements because she had work in another courtto be true, her absence was inexcusable, for it has been settled avery long time ago that the failure to attend Court because of work inanother Court is not an acceptable reason. (See Herber v. Rand®).The respondent ought not to have accepted conflicting professionalengagements. It was not her case that the conflicts arose, as nodoubt they sometimes do, on account of circumstances beyond hercontrol.
When the matter came up on the 19th of August 1988, therespondent was absent and the Court ordered the issue of notice for20th September, 1988.
in the course of her evidence, the respondent stated that she doesnot appear in Court except as an “instructing attorney'’.
The respondent was expressly empowered by the proxy andcontractually obliged to appear for her client. Moreover she had a
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professional obligation in terms of Rule 16 to appear for her client.The fact that she only acted as an "instructing attorney” was not avalid ground for her absence. If the respondent was unwilling to openher mouth in Court, she should have ensured that there was anAttorney retained and instructed by her to appear as Counsel toprotect her client's interests. If the respondent had not engaged theservices of Counsel, then she was, despite her personal preferencesand inclinations, obliged to be present in Court and also speak forher client. It is no excuse for a registered attorney in a contentiouscivil matter to say that he or she failed to appear in any Court orTribunal because such a person acts, as a matter of personalpreference, only as an "instructing attorney" and never did anyadvocacy and did not ordinarily appear in Court or that he or she didnot usually appear in that type of Court. Every Attorney has a right ofaudience before all Courts and Tribunals (unless statutorily excluded)and he or she must, therefore, appear in terms of his or herundertakings to the client. If an Attorney has been appointed by aproxy formulated in terms of the Civil Procedure Code, as it is thecase in this matter, such an Attorney has every right to conduct thecase in Court. Indeed, even where there are two distinct branches ofthe profession, as for instance in England, it has been held that if aperson in the position of an "instructing attorney" (e.g. a "Solicitor")has a right of audience, then he must appear (See Swannel v. Ellis«cf. Courtney v. Stockm). Where an attorney intends to function in acontentious civil matter only as a Registered Attorney, and not also asCounsel, he or she should ensure that an Attorney who is to appearas Counsel is retained and instructed. Otherwise the RegisteredAttorney would be acting in contravention of his or her contractualduties in terms of the proxy. He or she would also be acting incontravention of Rules 15 and 16 of the Supreme Court (Conduct ofand Etiquette for Attomeys-at-Law) Rules of 1988.
The respondent also maintained that she was not present in Courton the 19th of August 1988 because on the previous date, namely, 11July, 1988 Mr. Welcome had appeared on her instructions andobtained the date. Not being present herself, she did not know thatthe date given was 19 August, 1988. Learned Counsel for the
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respondent submitted that when Counsel appears and obtains adate, it is a date convenient to him, and therefore "the responsibilityshifts to Counsel' to "keep track of the case and appear on the nextdate or prepare answer or written submissions or whatever documenthe undertook to prepare before the next date." The decision inRanaweera v. Jinadasa and Gunapala<5> was cited in support of hissubmissions.
While an Attorney who has been retained and instructed by aRegistered Attorney to appear as Counsel for the purpose ofconducting the case, and who in so acting, obtains a date to suit hisconvenience, could be reasonably expected to appear on that dateto conduct the case, Mr. Welcome had not been so retained andinstructed. According to the evidence of the respondent, she retainedMr. Welcome on each of the two occasions on which he appeared forthe specific and limited purpose of obtaining postponementsbecause the respondent was engaged in the business of anotherCourt. There was nothing to show that the date was suggested byMr. Welcome to suit his convenience. There was no reason for him tohave asked for a particular date since he was not the Counsel in thecase. The respondent knew the circumstances in which Mr. Welcomewas retained and she could not have reasonably assumed thatMr. Welcome would appear once again. There is certainly no duty, assuggested by learned Counsel for the respondent, that an Attorneywho is merely instructed to appear for the purpose of requesting apostponement, should, without being instructed to do so, appearagain. Having asked Mr. Welcome to obtain a postponement, it washer duty to ascertain what the decision of the Court was in responseto his application. This, she should have ascertained fromMr. Welcome, who, she claims, she retained, or by examining theJournal Entries from time to time, as a Registered Attorney should do,especially if he or she has not been in Court on account of his or herpresence having been dispensed with by Counsel. Havingascertained the next date, the respondent should have eitherinstructed Counsel to appear on that date or personally appeared forthe client on that date. Ranaweera v. Jinadasa and Gunapala (supra)does not assist the respondent. If a registered Attorney has notappointed another Attorney to act as Counsel, or having appointedCounsel, he has not agreed with Counsel that the attendance in
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Court of such Registered Attorney may be dispensed with, then suchRegistered Attorney must personally keep a track of the dates ofhearing, having regard to the usual way in which dates of hearing arefixed and notice is given in the Court or tribunal, and appear whenthe case comes on for hearing or other purpose decided or orderedby the Court or Tribunal. In the circumstances, the absence of therespondent on the 19th of August 1988 was an inexcusablecontravention of her obligation to appear for the complainant.
On the 20 of September, the respondent attended Court and foundMr. F. C. Perera, whom she had neither briefed, nor retained norinstructed, appearing for her client. However, it seems therespondent was quite satisfied having her appearance marked as the‘instructing attorney." On that day the Court made Order permittingthe defendant – the complainant in the matter before us – to fileanswer unconditionally on the 26th of October 1988.
Learned Counsel for the respondent submitted that the RegisteredAttorney’s absence on certain dates between 22 March, 1988 andthe 20th of September, 1988 “had not caused any prejudice to thecomplainant as the Court had allowed the respondent to file answerunconditionally." In my view, this is an erroneous way of approachingthe matter. If an act of professional misconduct results in a benefit toa client, does it mean that the attorney is excused? I do not think so.What we have for consideration is not the result of misconduct, good,bad or indifferent, but whether there was misconduct. In a matter ofthe kind before us, an act or omission is either proper or improper atthe time it was done and not by reference to its consequences. Thisquite obvious principle was illustrated in the Australian case of LawSociety of New South Wales v. Starky,m. In that case, the clientswhose money had been “juggled with", as the Court observed, bytheir Solicitor "in pursuance of his land speculation schemes",fortuitously escaped without loss. The Solicitor was, nevertheless,struck off the Roll.
The Court, as we have seen, had ordered that answer should befiled on the 26th of October 1988. However, when the matter came upon the 26th of October, the answer had not been filed and the Courtfixed the matter for ex parte trial on the 7th of November 1988. The
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defendant was present on 26 October, but he was unrepresented byeither Counsel or by his registered attorney.
When the matter came up on the 7th of November, the defendant,D. E. Daniel, was absent and unrepresented and judgment was givenin favour of the plaintiff.
Daniel complained to the Bar Association by his letter dated14 March 1991. He said, among other things, that, although he had"handed over" his case to Chandradeva, she had ‘only appearedtwice", and that he "came to hear" that Chandradeva "wassupporting the other party".
With regard to the allegation that Chandradeva was guilty ofdisloyalty and was “supporting the other party", the complainantadduced no admissible evidence in that regard either before the BarAssociation or in these proceedings and I reject that allegation asbeing unproved.
Daniel also complained to the Bar Association as follows:
"I trusted her and paid Rs. 750/- to file the answer, but as my casewas not called for months, with the help of another Proctor I went andchecked in the Record Room and found out that the answer has notbeen submitted. I went and asked Chandradeva, she told me thatshe has filed the answer and I am mad." (Sic.) "After a month or so, Icame to hear that the case was called and judgment given, thePlaintiff was present." (Sic.) “I again approached Chandradeva, shetold me that it is not so. I once again went to meet Chandradeva atKalubowila, she wanted me to come to her office but she did notcome. Thereafter I gave her three telephone calls but she wasevading and did not take up the calls. She undoubtedly has cheatedme and let me down very badly.
Sir, I appeal to you, to kindly ask her to give me a letter revokingthe proxy, and as I am jobless and undergoing great hardships, Imanaged to settle her up to date. I do hope that you would help me, in this matter and to kindly get me the letter of revocation as early aspossible."
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It is not necessary for our purposes to go into the correspondencebetween the Bar Association and the respondent although some timeand effort was spent on the matter during the leading of evidenceand in the submissions of learned counsel. What needs to be notedis that the Professional Purposes Committee of the Bar Association onthe 11th of July 1992, after an inquiry at which the respondent wasnot present despite notice to her to be present, recommended thatthe matter be reported to the Chief Justice.
On the 19th of May 1993, a Rule was issued under the hand of theRegistrar of the Supreme Court referring to the complaint of Danieland the Report of the Panel of the Professional Purposes Committeeof the Bar Association and stating that the complaint and reportdisclosed that the respondent has committed “acts of (a) deceit; and
malpractice; and/or (c) crime (criminal breach of trust) undersection 42 (2) of the Judicature Act No. 2 of 1978."
For the reasons explained above, I am of the view that the failureof the respondent to appear in Court on the various dates referred towas in dereliction of her professional duties as a Registered Attorney-
at-Law.
I turn now to the question of deceit. There was no dispute withregard to the fact that the complainant paid the respondent a sum ofRs. 750. The complainant states that this sum was paid to therespondent for the preparation of the ‘Answer’ to be filed in theDistrict Court but that no ‘Answer’ was prepared or filed, and he wasunrepresented when the matter came up in Court, with the result thatthe matter was decided ex parte against him. The respondent,however, states that the money was paid by her to Mr. ShankeyParathalingam for the preparation of written submissions. Althoughthere was some confusion at one stage, it was eventually establishedby the evidence that the sum of Rs. 750 was paid two weeks beforethe date for the filing of the answer, namely the 26th of October 1988.By this time there was no need to file written submissions to enablethe Court to decide whether the answer should be filed conditionallyor otherwise. That matter had been already decided by the Court onthe 20 of September. The respondent did not call Mr. Parathalingamto give evidence. She had not asked Mr. Parathalingam whether he
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Sri Lanka Law Reports
[1994] 2 Sri LR.
would give evidence. Understandably so, for Mr. Parathalingam hadnothing to do with Daniel’s case. If the respondent had obtained thewritten submissions of Mr. Parathalingam after paying him the sum ofRs. 750 entrusted to her for the purpose of paying his fees; why didthe respondent not file the submissions in Court, or at feast makethem available to Mr. Perera, the Counsel appearing instructed by herwhen it might have been of some use to him in making his oralsubmissions? The written submissions were not produced in theseproceedings. I do not think it was possible to do so simply becausethey never existed, An Attorney should have and maintain full andaccurate records so that monies paid or entrusted to him could beaccounted for. He should have properly written books of accountshowing, among other things, the amounts of receipts anddisbursements against relevant dates and particulars of receipts anddisbursements. The respondent in her evidence said that she had norecords of moneys paid to her. She was unable to demonstrate byreference to any record when or why she received payments or madedisbursements. She admitted receiving the sum of Rs. 750 and saidthat she had paid it for written submissions, but she has failed toestablish it by reference to records which she should havemaintained. The money was in my view not appropriated for thespecific purpose for which it was entrusted to her, but for her privatepurposes. Rule 28 of the Supreme Court (Conduct of and Etiquettefor Attorneys-at-Law) Rules of 1988 states that “Attorneys-at-Lawshall not appropriate any funds of his client held by him in trust for aspecific purpose except with the permission of the client.’’ I am of theview that the respondent violated that provision by appropriating thesum of Rs. 750 to her own purposes rather than the purposeintended by Daniel, her client. In my view the respondent obtainedthe sum of Rs. 750 from the complainant on the pretext of having the’Answer’ prepared by Counsel. She never had any intention of payingCounsel to do so, for her position was that, albeit erroneously, shepresumed that Mr. Perera, because he was in Court on the 20th ofSeptember and was aware of the fact that ‘Answer’ was to be filed on26 October 1988, had a duty to and would prepare and file the‘Answer’ in time. In the circumstances l hold that the respondent wasguilty of deceitful conduct and a breach of trust that was criminal innature. The respondent is unfit to be a member of the legalprofess ton.
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Daniel v. Chandradeva (Amerasinghe, J.)
17
Learned Counsel for the respondent drew our attention to thestandard of proof in matters of this nature. Where the conduct of anattorney is in question in disciplinary proceedings, it requires as amatter of common sense and worldly wisdom the careful weighing oftestimony, the close examination of facts proved as a basis ofinference and a comfortable satisfaction that a just and correctdecision has been reached. The importance and gravity of asking anattorney to show cause makes it impossible for the Court to besatisfied of the truth of an allegation without the exercise of cautionand unless the proofs survive a careful scrutiny. Proof beyondreasonable doubt is not necessary, but something more than abalancing of the scales is necessary to enable the Court to have thedesired feeling of comfortable satisfaction. A very high standard ofproof is required where there are allegations involving a suggestion ofcriminality, deceit or moral turpitude. I have very carefully scrutinizedthe evidence in this case and in all the circumstances established Ihave a comfortable satisfaction that a just and correct decision hasbeen reached.
For the reasons stated in my judgment, I make the Rule absoluteand make order that Chandradeva, the respondent in theseproceedings, shall be forthwith struck out of the Roll of Attomeys-at-Law.
WADUGODAPITIYA, J. -1 agree.
WIJETUNGA, J. -1 agree.
Rule made absolute. Respondent struck off the roll of Attorneys-at-Law.