Daimian Masters: Complaint No. 44 of 2014

Posted on by July 5, 2024

RESULT: Guilty of Professional Misconduct | Disciplinary Committee decision delivered July 23, 2016. || Struck off again, Restitution Ordered | Disciplinary Committee decision delivered June 24, 2017.

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DECISION OF THE DISCIPLINARY COMMITTEE
OF THE GENERAL LEGAL COUNCIL

COMPLAINT NO: 44/2014

IN THE MATTER OF KIRK SMITH vs DAIMIAN MASTERS an Attorney-at-­Law

AND

IN THE MATTER OF THE LEGAL PROFESSION ACT, 1971

PANEL:
Mr. Walter Scott Q.C.
Mr. Trevor Ho Lyn
Mrs. Debra E. McDonald

Parties appearing: Mr. Kirk Smith Complainant
Hearing dates : 28th November 2015, 27th February 2016

THE COMPLAINT

  1. The Affidavit of the Complainant is sworn to on the 15th January 2014 in support of the complaint of the same date. The Complainant alleges misconduct on the part of Mr. Damian Masters (hereinafter referred to as “the attorney”)
  2. The Complainant states at paragraph 3 :-
    ” In April 2011, I engaged the services of Damian Masters to transfer property on my behalf. I gave him One Hundred Ten Thousand dollars along with the title for the said property. However he has not provided me with any information as to the progress of my business, although I have required him to do so. To date, the transfer has not been completed and his law office has discontinued service.”
    At paragraph (4):-
    ” He has not provided me with all information as to the progress of my business with due expedition, although I have reasonably required him to do so.
    He has not accounted to me for all monies in his hands for my account or credit, although I have reasonably required him to do so. “
  3. The matter was heard on the 28th November. The Complainant who was then residing in the United Kingdom attended. He was unrepresented.
  4. The attorney, who was properly served with the Notice of Hearing in keeping with regulations 5 and 21 of the Fourth Schedule to the Legal Profession Act, did not appear. The Panel confirmed service upon the attorney by reference to the Affidavit of Service sworn to by Wayon Henry on the 25th day of November 2015, which exhibited the Notice and Certificate of Posting bearing registration number 3962 and dated October 27,2015. The matter was heard in the absence of the attorney.

Evidence of the Complainant

  1. That he is Kirk Smith, residing at 3626 Navoria Road, London SW9,7BD. He is a Facility Manager at a School.
  2. He has lived in London for 17 years. He lived in Jamaica at Lot 89 Greater Portmore St. Catherine before living in London.
  3. He met the attorney in April 2011 when he retained him to deal with the matter of the transfer of a property from the complainant’s uncle Ashley Forbes to the Complainant. The Complainant had actually purchased the property, however as he was overseas, the property was registered in the name of his uncle.
  4. The attorney was paid the sum of One Hundred and Eighty Thousand dollars ($180,000.00) in two payments of Seventy Thousand Dollars ($70,000.00) and One Hundred and Ten Thousand Dollars ($110,000.00) respectively.
  5. The complainant was only able to locate the receipt for the sum of One Hundred and Ten Thousand Dollars ( $110,000.00). This receipt was tendered into evidence as EXHIBIT 1.
  6. The Complainant also delivered to the attorney the Duplicate Certificate of Title for the property  registered at Volume 1277 Folio 905 of The Register Book of Titles in the name of Ashley Forbes. A copy of the said Title was admitted into evidence as EXHIBIT 2
  7. Several attempts were made by the Complainant to contact the attorney, but to no avail. He tried to recover the title and the money paid, but was not successful. Visits to the attorney’s office proved futile as he was not there, telephone calls went unanswered.
  8. Since retaining the attorney in April 2011, he has not seen or spoken with him. When the Complainant visited the attorney’s office in 2012, the attorney’s office had removed from the location.
  9. At the close of the Complainant’s evidence, the matter was adjourned to the 27th February 2016. The Complainant was given leave by the Panel to be absent on the next date. When the matter came up on the 27th February 2016, the attorney did not attend. The Panel having confirmed service upon the attorney by reference to the Affidavit of Service sworn to by Wayon Henry on the 26th day of February 2016, which exhibited the Notice and Certificate of Posting bearing registration number 8158 and dated January 26,2016, closed the evidence and reserved judgment.

THE BURDEN AND STANDARD OF PROOF

  1. The panel recognizes that in law, the burden of proof is upon the Complainant. The standard of proof in cases of professional misconduct is that of “beyond reasonable doubt”. This standard was applied by the panel in evaluating the evidence adduced before it to determine the appropriate decision to make in the circumstances of this complaint.
  2. The Attorney did not appear before the panel to give evidence, to tender documents in his defence, or to be cross examined. In the circumstances the only evidence available for the panel’s determination was that of the Complainant.
  3. We have examined the evidence of the complainant and find his evidence to be credible.

FINDINGS

  1. Pursuant to Section 15(1) of the Legal Profession Act, the panel makes the following findings:
    1. The Complainant retained the Attorney to act on his behalf in the transfer of lands comprised in a registered title from the uncle of the complainant, Ashley Forbes to the Complainant.
    2. The Attorney received from the Complainant, the sum of One Hundred and Ten Thousand Dollars($110,000.00) together with the Duplicate Certificate of Title registered at Volume 1277 Folio 905 of the Register Book of Titles.
    3. The Complainant has not been able to contact the attorney to ascertain the status of the matter.
    4. The attorney removed his office from the location where he first met with the Complainant without giving the Complainant notice of his new location.
    5. As far as the Complainant is aware, the Transfer has not been effected however, neither the Duplicate Certificate of Title nor the money paid to the attorney in connection with the transaction have been returned to the Complainant.
    6. The attorney had the responsibility to do all things necessary to complete the transaction and to deliver to the complainant, registered title for the property in his name within a reasonable time.
    7. The attorney failed or neglected to account to the complainant for any sums paid to him.
    8. The attorney failed or neglected to provide the complainant with information as to the progress of the matter.

CONCLUSIONS

  1. In light of our findings of fact, we are of the view that the Attorney has committed the acts of professional misconduct as alleged by the complainant.
  2. The attorney is in breach of the following Canons as set out in the Legal Profession (Canons of Professional Ethics Rules) 1978:
    Canon l(b)
    An Attorney shall at all times maintain the honor and dignity of the profession and shall abstain from behavior which may tend to discredit the profession of which he is a member.
    Canon IV(r)
    An attorney shall deal with his client’s business with all due expedition and shall whenever reasonably so required by the client, provide him with all information as to the progress of the client’s business with due expedition.
    Canon IV (s)
    In the performance of his duties an Attorney shall not act with inexcusable and deplorable negligence or neglect.
    Canon Vll(b)(ii)
    An Attorney shall account to his client for all monies in the hands of the Attorney for the account or credit of the client, whenever reasonably required to do so.
  3. In the light of of the Jamaican Court of Appeal’s decision in Owen Clunie v. GLC, CA 3/2013 delivered on the 22nd of September, 2014; wherein it was noted that: there should be an opportunity for the Attorney to be heard in mitigation before a sanction is imposed, this Panel directs that a date be set for this purpose and the Attorney be contacted for this opportunity to be given.

Dated the 23rd day of July 2016

Walter Scott Q.C.
Trevor Ho Lyn
Debra E. McDonald

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