RESULT: Reprimanded, Fined | Disciplinary Committee decision delivered February 02, 2022. || Guilty of Professional Misconduct | Disciplinary Committee decision delivered January 28, 2022.
DECISION OF THE DISCIPLINARY COMMITTEE
OF THE GENERAL LEGAL COUNCIL
COMPLAINT NO: 122/2019
IN THE MATTER OF MICHAEL ADAMS and ANTHONY ARMSTRONG an Attorney-at-Law
AND
IN THE MATTER OF THE LEGAL PROFESSION ACT, 1971
PANEL:
Daniella Gentles-Silvera – Chairman
Delrose Campbell
Anna Gracie
Appearances: The Complainant, Michael Adams represented by Hadrian Christie (on Zoom).
The Respondent, Anthony Armstrong, represented by Hugh Wildman (on Zoom).
Hearing: 28th January 2022 and 2nd February 2022.
BACKGROUND
- On the 28th of January 2022 we found Anthony Armstrong (hereinafter called “the Attorney”) guilty of professional misconduct, specifically for witnessing the signature of the Complainant on Transfers to purchase one property, and to effect the sale of three properties without the Complainant, the registered proprietor, having signed the said documents in his presence. This act by the Attorney we found to be a breach of Canon I(b) of The Legal Profession Act (Canons of Professional Ethics) Rules (hereinafter called “the Canons”) which provides that “an Attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member”.
- The Attorney through his Counsel was given an opportunity to address us on sanction, which was done by way of submissions. We also heard from Mr. Hadrian Christie, the Complainant’s Counsel on sanctions.
- The decision should be read together with the Decision of 28th January 2022
RESPONDENT’S SUBMISSIONS
- Counsel for the Attorney submitted that his client deserved no more than to be admonished and discharged for the reasons that:
- the Attorney committed what he termed “a technical breach” by witnessing the signature of the Complainant without him being present and this act could not have misled anyone as to the genuineness of the Transfers given the Committee’s finding that the Complainant did sign the said Transfers;
- many lawyers and Justices of the Peace witness documents without the person signing being in their physical presence. According to Mr. Wildman this is common practice, a matter of convenience and anyone could be the victim of “skulduggery” as happened to the Attorney;
- the Committee did not find that the Attorney had committed fraud, misrepresentation, or any act of dishonesty;
- the Attorney was a victim of a “rogue”, the Complainant, as he relied on him saying he had signed the documents. The Attorney thought he was dealing with an honourable man; and
- the Attorney has learnt his lesson.
COMPLAINANT’S SUBMISSIONS
- Mr. Christie submitted that sanctions are important to have also a deterrent effect and therefore, the Committee needs to send a message to the profession as a whole, particularly if Mr. Wildman is correct when he said many attorneys sign documents without the signor being present. Mr. Christie also asked us to take into account the fact that the Attorney at no time appeared to appreciate that he did anything wrong in signing the documents in the absence of the Complainant. He showed no remorse.
LAW
- In determining the appropriate sanction to be imposed, the starting point is the case of Bolton v Law Society (1994) 2 ALL ER, 486 and in particular the judgment of Sir Thomas Bingham, MR where he stated that:
“It is required of lawyers practicing in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers, it is because this appeal concerns a solicitor, and where a client’s moneys have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients’ moneys and barristers do not. 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. Lapses from the required high standard may, of course. take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not Leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors… It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his figure compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of ·whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house. very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.” (Pages 491 – 492) (Emphasis Added)
- The Sanctions Guidance: Breaches of the BSB Handbook Version 5 (15/10/019) produced by The Bar Tribunal and Adjudication Service. The Council of the Inns of Court (“Sanctions Guidance”) is also very useful in considering what the appropriate sanction should be.
- Section 3.1 of the Sanctions Guidance sets out the purposes of applying sanctions for professional misconduct which are applicable to cases of professional misconduct which the Committee has to treat with. The purposes are:
- “To protect the public and consumers of legal services;
- To maintain high standards of behaviour and performance at the Bar
- To promote public and professional confidence in the complainants and disciplinary process”.
- Sections 3.2 and 3.3 reads as follows:
“3.2… In fulfilling the purposes it is important to avoid the recurrence of behaviour of an individual… as well as provide an example in order to maintain public confidence in the profession.
3.3… the sanctions imposed may be necessary to act as a deterrent to other members of the profession. Therefore, when considering a sanction, it may be necessary not only to deter the individual barrister… from repeating the behaviour but also to send a signal to the profession and the public that the particular behaviour will not be tolerated. A deterrent sanction would be most applicable where there is evidence that the behaviour in question seems to be prevalent in relation to a number of barristers within the profession.”
- Another important decision on sanctions for professional misconduct is Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin). In this case the Solicitors Regulation Authority (“SRA”) appealed a decision of the Solicitors Disciplinary Tribunal who found a solicitor guilty of dishonesty and suspended him from practice for three years. The SRA’s appeal was on the basis that the sentence of suspension was excessively lenient and that given the dishonesty found, the normal sanction of striking off the roll should be ordered. The Court found that the approach of the Tribunal was right that for dishonesty unless exceptional circumstances could be shown, the Respondent Attorney should be struck off the roll, however, they were wrong in concluding that the circumstances were exceptional.
- Coulson J said:
“It seems to me, therefore, that looking at the authorities in the round, that the following impartial points of principle can be identified: (a) Save in exceptional circumstances, a finding of dishonesty will lead to the solicitor being struck off the roll, see Bolton and Salisbury. That is the normal and necessary penalty in cases of dishonesty, see Bultitude. (b) There will be a small residual category where striking off will be the disproportionate sentence in all the circumstances, see Salisbury. (c) In deciding whether or not a particular case falls into that category, relevant factors will include the nature, scope and extent of the dishonesty itself; whether it was momentary, such as Burrowes, or other a lengthy period of time, such as Bultitude; whether it was a benefit to the solicitor (Burrowes), and whether it had an adverse effect on others. ” (Para 13)
- The applicable principles gleaned from Bolton v Law Society supra; Solicitors Regulation Authority v Sharma supra and the Sanction s Guidance are as follows:
- Where an attorney is guilty of serious dishonesty, he must expect a severe sanction.
- For dishonesty, tribunals have “almost invariably” struck off the attorney from the roll no matter how strong his plea in mitigation.
- The use of the words “almost invariably” refers to the exceptional case were striking off may not be the appropriate result. It would be a disproportionate sanction and one must consider factors such as the nature and scope of the dishonesty; whether it was a momentary lapse as opposed to having been sustained over a period; whether it was committed for persona l benefit and whether it had an adverse effect on others.
- The reason for such seemingly harsh orders such as striking off is:
- to punish the attorney and deter other attorneys from behaving in a similar manner; and
- to maintain the reputation of the profession and give the public confidence in the integrity of the profession.
- In this case, the Attorney witnessed the signature of the Complainant, the registered proprietor of property, on four transfers; three to effect the sale of three properties and one to effect the purchase, without the Complainant being in his physical presence. The fact of an attorney witnessing a signature on a transfer of property without the signor being in his presence is in effect committing a falsehood, as by witnessing the signature the attorney authenticates that the signature is true and genuine. Signing as a witness to a signature that an attorney did not see being made is an act of dishonesty as it is untrue. Based on the Attorney’s own evidence this was done on at least four occasions, when he acted for the Complainant in the purchase of the Columbus Heights apartment and when the three properties were being sold. There is no evidence, based on our findings, that the Attorney gained any personal benefit in this matter nor did the witnessing of the Complainant’s signature without him being physically present have an adverse effect on others. Had the Complainant not signed the Transfers, which we found he did, thereby authorizing the purchase and subsequent sales, the consequences of the actions of the Attorney would be far more severe than the case before us. Accordingly , we find that this matter falls within the exceptional category where although the Attorney was dishonest it does not warrant a sanction of striking off or for that matter suspension.
- That being said, although Mr. Wildman submitted that the Attorney had learnt his lesson, while giving evidence, the Attorney did not appear to appreciate that he ought not to have signed the documents without the Complainant being present. Further, attorneys signing documents to say they have witnessed a person signing a document without that person having actually signed in their presence is conduct which cannot be condoned by the Committee. Public interest requires and the general public expects attorneys to be completely honest and to be of the highest integrity. Hence when an attorney signs a transfer or any document as a witness to the person signing, the public and the authorities such as the Registrar of Titles accepts that the signature was genuine and therefore will act to effect the transfer of an interest in real estate which in the absence of proven fraud, will result in the title being unimpeachable. Finally we are mindful that any sanction must have a deterrent effect in order to mark the severity of the breach and so as to prevent its reoccurrence by not only the Attorney in the present case but for all attorneys in general.
- Accordingly, it is the decision of this Panel that:
-
- The Attorney, Anthony Armstrong is hereby reprimanded.
- The Attorney shall pay a fine of $250,000.00 to the General Legal Council within thirty (30) days of the date hereof.
- Costs of these proceedings in the amount of $30,000.00 is to be paid by the Attorney to the General Legal Council.
Dated the 2nd day of FEBRUARY 2022
Daniella Gentles-Silvera – Chairman
Delrose Campbell
Anna Gracie