RESULT: Guilty of Professional Misconduct | Disciplinary Committee decision delivered February 22, 2020.
DECISION OF THE DISCIPLINARY COMMITTEE
OF THE GENERAL LEGAL COUNCIL
COMPLAINT NO: 76/2018
IN THE MATTER OF NICOLE HAMIL-SCOTT and RUDOLPH EMANUEL ALPHONSO MUIR an Attorney-at-Law
AND
IN THE MATTER OF THE LEGAL PROFESSION ACT, 1971
PANEL:
Ursula Khan – Chairman
Katherine Francis
Jeffery Daley
- A complaint was filed in the matter by the Complainant, Nicole Hamil-Scott on April 10, 2018 and was supported by Form of Affidavit of Applicant in support of the complaint. These were admitted into evidence as Exhibits 1 and 2. The evidence led included viva voce, affidavit and documentary evidence. A number of exhibits were also tendered including the Affidavits filed by the Respondent on his behalf; these were tendered as Exhibits 4(b) & 4 (b) as the Complainant had specifically responded to them by way of her further Affidavits.
- The evidence was closed without hearing from the Respondent as he was absent once the trial of the matter commenced. After due consideration the Panel made certain findings of evidence.
- The Panel finds that the Respondent, Mr. Muir was retained by the brother of the Complainant, Mr. Edward Hamil, in or about July 2016 firstly, to apply for a grant of probate of the will of their father and secondly to have conduct of the sale of land situate at No. 7 Eastwood Park Road, Kingston 10 and registered at Volume 582- Folio 30. Also, that the beneficiaries under the relevant Will were Edward Hamil, Sonya Hamil and the Complainant, Nicole Hamil-Scott.
- The Panel further finds that written irrevocable instructions were given to Mr. Muir by Mr. Edward Hamil, that the net proceeds for the sale of land were to be divided equally among himself and his siblings, Sonya Hamil and the Complainant. In his Affidavits (Exhibit 4 (a) and 4(b) the Respondent conceded that these were in fact his instructions and he further conceded that these were irrevocable instructions. This, albeit that at one point in time Mr. Hamil purportedly revoked those instructions; despite, said instructions being irrevocable. It is on this basis that the Respondent initially stated was the reason why he did not immediately disburse the proceeds of sale upon completion. By the Respondent’s own evidence, he admitted that he subsequently received instructions from Mr. Hamil to disburse in accordance with his previously written irrevocable instructions.
- There was no dispute between the parties that the Respondent completed the probate, at least such that he was able to complete the sale of the property at Eastwood Park Road. Upon completion of the sale, it therefore become incumbent on the Respondent to disburse the proceeds as per his written instructions from Mr. Hamil to the three beneficiaries including the Complainant. The Panel found that the Respondent did not disburse the proceeds.
- The Panel finds that the Complainant corresponded in writing with the Respondent for an update as to the disbursement of the proceeds of sale. The Panel also finds that there were several items of email correspondence going between the Respondent and the Complainant and that despite several attempts to communicate with the Respondent by the Complainant, she received little or no information as to the progress or continuation of the sale of the matter. This led her to file a complaint.
- It is to be noted that when this matter came up for hearing, on the 23rd November 2019, the Respondent was present and he advised the Panel that he was in the process of preparing to make the payments to the Complainant and her sister. On that particular occasion, though the Complainant was absent, but her Attorney, Mr. Linton Walters was present, and the following orders were made by consent:
- Payment to be made on or before Wednesday, 27th November 2019
- The sum of Twenty-One Million, Six Hundred and Thirty-Nine Thousand, One Hundred and Thirty-Eight Dollars ($21,639,128.00) is to be paid to the client’s trust account of the Complainant’s Attorney, Mr. Linton Walters at NCB Duke Street.
- All accrued interest to be paid together with all sums mentioned above.
- The matter fixed for trial on the 28th November 2019 at 2pm.
- The Panel finds that since that date and until the conclusion of the matter, no such sums or any other sums have been paid to the Complainant or her Attorney and notes Exhibit “NHS-3” -Statement of Account attached to the Complainant’s Affidavit sworn on 12th September 2019.
- It should be noted that on November 27, 2019, the Respondent filed a Further Affidavit to support an application for an extension of Łime for the Trial of the matter as well as provide some explanation why the payment had not yet been made as had been ordered by consent and requested an adjournment to Friday, December 6 2019.
- It is important to note that in paragraph 4 of the Affidavit sworn to by the Respondent on the 27th November 2019, he speaks to the required payment not yet been made for reasons not within his control and that the interest computation is still being settled. At no point in this matter has the Respondent ever denied that he does in fact owe monies to the Complainant or that he has not fulfilled his obligation to remit those funds to the Complainant.
- On November 28, 2019, the matter was adjourned for reasons proffered by both parties to December 7, 2019. It should be noted that at the direction of the Panel, the Secretary of the Disciplinary Committee advised the Respondent by email that if he failed to attend on the next occasion when the matter came up for hearing that the Panel will proceed in his absence. Having satisfied itself that the Respondent had been served with the Notice of Hearing, and having attempted to contact the Respondent by telephone, the Panel commenced hearing the matter. The Panel found support in this approach from the decision of Norman v Arlean Beckford Complaint No. 21 of 2012, citing R v. Lloyd Chuck (1991) 28 JLR 422, albeit a criminal case, which speaks to the conduct of a hearing in the absence of an accused, particularly in the absence of any excuse or any reasonable excused from an accused person, that a tribunal is well within its right in exercising its discretion to conclude its hearing notwithstanding the absence of the accused. This position appears to be no different from tribunals which concern itself with disciplinary matters such as this present matters. In this regard reference can be made to Awan v. Law Societv [2001] All ER (D) 156 (Dec). It should be noted that the Respondent was absent for the trial dates of this matter but present for the previous dates up to November 27, 2019.
- At the conclusion of the evidence in chief of the Complainant, the Panel adjourned the hearing and ordered that the notes of evidence be sent to the Respondent so as to enable him to cross-examine the Complainant should he so wish. The matter was adjourned to February 8, 2020.
- The Panel notes a letter from the Respondent, dated February 7, 2020 wherein he stated in the fourth paragraph that he had no questions for the Complainant and in the fifth paragraph, the Respondent poke to the need to the “re-assembly of the proceeds to be paid to the Complainant has proved more intricate than imagined.” He also requested an adjournment of this matter to the end of February and this was granted until today’s hearing date. It should be noted that a request for an adjourned had also been made by the Complainant’s Attorney-at-law and the matter was adjourned to February 22, 2020.
- On February 22, 2020, again the Respondent was absent and again two attempts were made to try to contact him by telephone without success. The Claimant thereafter closed her case and accordingly, the marshalling of evidence was concluded.
- The Panel is reminded that in these matters the burden of proof rests on the Complainant to prove her case against the attorney and this burden never shifts. The standard of proof required is that of the criminal standard – beyond a reasonable doubt. This is standard that must be applied by the panel in evaluating the evidence adduced before it to determine the appropriate decision to be made in the matter. Having duly considered all the evidence before it, the Panel so finds that the Complainant and the evidence in this case have met the requisite standard and burden of proof.
- In the circumstances the Panel finds the Respondent guilty of professional misconduct and finds that the Complainant has proven all five complaints against the Respondent, namely:
- He has not provided her with all information as to the progress of her business with due expedition, although she has reasonably required him to do so;
- He has not dealt with her business with all due expedition;
- He has acted with inexcusable or deplorable negligence in the performance of his duties;
- He has not accounted to her for all monies in his hands for her account or credit although she has reasonably required him to do so; and
- He is in breach of Canon I(b) which states that “An Attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behavior which may tend to discredit the profession of which he is a member.”
- In light of the Court of Appeal decision in the case of Clunie (Owen) v The General Legal Council (2014), the matter is adjourned to afford the Respondent Attorney an opportunity to address the Panel on the sanctions to be imposed against him, consequent on the findings above.
Dated the 22nd day of February 2020
Ursula Khan – Chairman
Katherine Francis
Jeffery Daley