RESULT: Reprimanded, Fined | Disciplinary Committee decision delivered March 26, 2019.

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DECISION OF THE DISCIPLINARY COMMITTEE
OF THE GENERAL LEGAL COUNCIL

COMPLAINT NO: 62/2017

BETWEEN	GEORGE ROBERT SMITH	COMPLAINANT
AND	LESLIE ROY CAMPBELL	RESPONDENT

PANEL:
Daniella Gentles-Silvera
Debra McDonald
Kevin Powell

HEARING DATE: 29th September 2018 & 26th March 2019.

The Complainant and Mr. Campbell were present at the hearing. Neither party was represented by an attorney.

THE COMPLAINT

1. By Form of Application dated the 9th February 2017 and Form of Affidavit sworn to by him on the 12th February 2017, Mr. George Smith (hereinafter called “the Complainant”) laid a complaint against Attorney-at-Law Mr. Leslie Roy Campbell (hereinafter called “the Attorney”).
2. The complaint is that the Attorney:
   1. Has not provided the Complainant with all information as to the progress of his business with due expedition, although reasonably required to do so.
   2. Has not dealt with the Complainant’s business with all due expedition;
   3. Has acted with inexcusable or deplorable negligence in the performance of his duties; ·and
   4. Has not accounted to the Complainant for all monies in his hands for his account or credit, although she has reasonably required him to do so.
   5. Is in breach of Canon I (b), having failed to maintain the honour and dignity of the profession and abstaining from behaviour which tended to discredit the profession.

EVIDENCE OF THE COMPLAINANT

3. The Form of Application and Form of Affidavit sworn to by the Complainant were admitted into evidence as Exhibits 1 and 2 respectively. His evidence is that on the 16th May 2000, the bus which he was driving as involved in a collision with a truck owned by Magna Corp Investments Limited (“Magna Corp”) and driven by one Otis Graham. He sustained serious injuries which resulted in him being a paraplegic and confined to a wheelchair. Prior to the accident, he worked as a painter and plumber.
4. He retained the Attorney in 2002 to represent him in a suit filed on his behalf in the Supreme Court against Magna Corp and Otis Graham to recover damages for his injuries. The parties entered into a contingency agreement for a fee to the Attorney of 30% of any sum recovered. He recalled going to court on at least one occasion when the Judge said he should get compensation.
5. He admitted receiving funds totalling $1 ,680,000.00 from the Attorney, being sums collected from Dyoll Insurance Company Ltd. (“Dyoll”), the insurers for Magna Corp. He recalls signing a document which was subsequently identified as a Release and Discharge given to Dyoll on behalf of Magna Corp in exchange for a sum of $3,000,000.00 and admitted into evidence as Exhibit 3. He was however unclear as to the total judgment to which he was entitled. He subsequently became aware that Dyoll “went down”, but notwithstanding many telephone calls and letters, he could not get information about his case from the Attorney
6. The Complainant went as far as sending a bearer to the Supreme Court to check the file. He also visited the offices of the insurance company, which by that time was in liquidation.
7. Eventually, he was informed by persons working in the Attorney’s office that he should come in to get his file as there would be no further sums from the insurance company, as the “case was over”. The Attorney never wrote to him or contacted him to explain the situation and what this meant.
8. The Complainant was confused as he recalled the judge saying he should get money to last him for life. He knew that could not have been the $3,000,000.00 as the Attorney had to take fees from that sum.
9. Upon cross examination by the Attorney, the Complainant admitted that his ability to read and write was limited. He did not understand what was meant by “Interim payment”. Letters from him to the Attorney and to the General Legal Council were typed or otherwise prepared by someone else, then signed by him. He denied accusing the Attorney of stealing his money.
10. When asked about the application by the attorney for Magna Corp to strike out the claim against the company on the basis that Otis Graham was the owner of the vehicle in question, the Complainant ridiculed this suggestion as he said he knew Otis had no means to purchase a vehicle.

EVIDENCE OF THE ATTORNEY

11. The Attorney filed two affidavits in response to the complaint. They were sworn to on the 24th September 2018 and the 25th April 2017. The affidavits were admitted into evidence as Exhibits 4 and 5 respectively.
12. The Attorney admitted that he was retained by the Complainant. He filed suit against Magna Corp and Otis Graham on the 15th October 2002. He obtained judgment against Magna Corp, however it was later set aside upon the application of attorneys for Magna Corp, on the basis that the vehicle was owned by Otis Graham and he was not an employee of Magna Corp but a contractor.
13. Upon the application of the Attorney, an order for an interim payment to the Complainant of $3,000,000.00 was made against Otis Graham on May 18, 2005. It is not clear what if any steps the Attorney took to enforce this order. The Order expressly stated that “this sum of $3,000,000.00 is subject to the limit of an applicable insurance policy.” On May 13, 2008 Dyoll issued a Release and Discharge “on behalf of [Magna Corp]” also for $3,000,000.00 but “in full discharge and satisfaction of all claims, costs and demands whatsoever, suffered by [the· Complainant] whether now apparent or hereafter to become manifest and arising directly or indirectly from an accident which occurred on or about 16th May 2002.”
14. The Complainant signed it. Of the sum of $3,000,000.00, $2,336,563.02 was paid to the Attorney by Dyoll’s liquidator. Of this sum, the Attorney retained $656,538.90 as his fees and paid $1 ,680,024.12 to the Complainant in accordance with the terms of the Contingency Agreement. By this time Dyoll was in liquidation.
15. The Attorney issued a statement of account to the Complainant dated 27th November 2012.
16. The Attorney did not pursue the case against Otis Graham as his investigations confirmed that Mr. Graham was a “man of straw” and this would be futile.
17. At no time did the Attorney inform the Complainant that the $3,000,000.00 was paid in the full and final settlement of the claim against Magna Corp. He did not verbally or in writing inform or explain to the Complainant that he was treating the case as at an end due to the insolvency of the insurance company and what he considered the unlikelihood of recovery against Mr. Graham.

BURDEN AND STANDARD OF PROOF

18. 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 a 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.

FINDINGS OF FACT

19. The Panel having perused the affidavits filed by both parties, and having examined the evidence finds that the following facts have been established beyond reasonable doubt:
    1. The Complainant retained the Attorney to represent him in the recovery of damages for personal injuries sustained in a motor vehicle accident.
    2. The parties entered into a contingency fee arrangement.
    3. Suit was filed by the Attorney in the Supreme Court on behalf of the Complainant against the registered owner of the motor vehicle, Magna Corp and the driver of the motor vehicle, Otis Graham.
    4. The insurer of the motor vehicle was Dyoll.
    5. An interim Order was made in favour of the Complainant against Otis Graham for $3,000,000.00.
    6. Dyoll issued a release and discharge for $3,000,000.00 on behalf of Magna Corp which was signed by the Complainant.
    7. In compliance with the Release and Discharge Dyoll paid the sum of $2,336,563.02 to the Attorney who in turn paid $1,680,024.12 to the Complainant.
    8. Dyoll was placed in liquidation and no further sums were recovered.
    9. The Attorney did not explain to the Complainant orally or in writing the status of his case and the implications thereof.

DISCUSSION AND ANALYSIS

20. The main complaint of the Complainant was the lack of communication and information from the Attorney. Clients are entitled to receive information as to the progress of their matters. In this case, the Attorney knew or ought to have known that the Complainant was not fully literate. This, coupled with his severe injuries, made his anxiety as to the outcome of his case quite reasonable. The Attorney ought to have communicated with the Complainant in writing, as well as verbally the position regarding the insolvency of Dyoll and his decision not to pursue the case against the defendant Otis Graham because of the Attorney’s assessment that Otis Graham was “a man of straw”.
21. The evidence is that the Attorney had however proceeded expeditiously and competently with filing the claim in the court, and in his correspondence with Dyoll.
22. We have seen a statement of account prepared by the Attorney and addressed to the Complainant setting out details of what was received and how the sum paid to the Complainant was arrived at. In any event during the hearing, the Complainant did not express any dissatisfaction with what he received from the Attorney. Further, he expressly denied any allegation that the Attorney had been dishonest with regard to the collection and distribution of his funds.

CONCLUSION

23. In the circumstances, we find that the Attorney has committed an act of professional misconduct, and breached Canon IV(r) in that he has failed to provide the Complainant with all information as to the progress
    of his business with due expedition although reasonably required to do so.
24. The Attorney is reprimanded and ordered to pay:
    1. A fine to the Complainant of $100,000.00.
    2. Costs to the Complainant in the sum of $20,000.00 and to the General Legal Council in the sum of $15,000.00.
    3. These amounts are to be paid on or before 21 days of the date hereof.

Dated the 26th day of March 2019

Daniella Gentles-Silvera
Debra McDonald
Kevin Powell

FORMAL ORDER
OF THE DISCIPLINARY COMMITTEE OF THE GENERAL LEGAL COUNCIL
COMPLAINT NO: 62/2017

IN THE MATTER OF GEORGE ROBERT SMITH and LESLIE ROY CAMPELL an Attorney-at-­Law

AND

IN THE MATTER OF THE LEGAL PROFESSION ACT, 1971

PANEL:
Mrs. Daniella Gentles-Silvera
Mrs. Debra McDonald
Mr. Kevin Powell

HEARING DATES: 29th SEPTEMBER 2018 AND 26th MARCH 2019

UPON THE APPLICATION made under section 12 (1) (a) of the Legal Profession Act and dated the 9th February 2017 coming on for hearing before the Disciplinary Committee on the 29th September 2018.

AND UPON the Complainant Mr. George Smith appearing and having given evidence on oath

AND UPON the Respondent Attorney-at-law Mr. Leslie Campbell appearing and having given evidence on oath

AND UPON DUE CONSIDERATION of the sworn evidence of the Complainant and the Respondent

THE COMMITTEE FINDS THAT:

Attorney Leslie Campbell is guilty of professional misconduct as per Canon IV(r), in that, the Complainant retained the Attorney to represent him to recover damages for personal injuries sustained in a motor vehicle accident. An interim Order was made in favour of the Complainant against Otis Graham for $3,000,000.00. Dyoll Insurance Company Ltd. issued a release and discharge for the $3,000,000.00 which was signed by the
Complainant.

In compliance with the Release and Discharge, Dyoll Insurance Company Ltd. paid the sum of $2,336,563.02 to the Attorney who in turn paid $1 ,680,024.12 to the Complainant. Dyoll Insurance Company Ltd. was placed in liquidation and no further sums were recovered. The Attorney did not explain to the Complainant orally or in writing the status of his case and the implications thereof in light of the insolvency of Dyoll Insurance Company Ltd. and therefore he failed to provide the Complainant with all information as to the progress of his business with due expedition although reasonably required to do so.

ln the circumstances the Attorney has breached Canon IV (r) of the Legal Profession (Canons of Professional Ethics) Rules 1978.

PURSUANT TO THE FOREGOING FINDINGS THE COMMITTEE UNANIMOUSLY HEREBY ORDERS THAT: –

Pursuant to section 12 (5) (a) of the Legal Profession Act as amended:

The Attorney is reprimanded and order to pay:

1. A fine to the Complainant of $100,000.00.
2. Costs to the Complainant in the sum of $20,000.00 and to the General Legal Council in the sum of $15,000.00.
3. These amounts are to be paid on or before 21 days of the date hereof.

CHAIRMAN OF PANEL

Dated 26th March 2019