Chaudhry v Chief Registrar [2015] FJCA 28; ABU60.2012 (27 February 2015)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CIVIL APPEAL NO: ABU 60 of 2012
On appeal from Independent Legal Commission, Application No. 004)

BETWEEN:

RAJENDRA CHAUDHRY
Appellant

AND:

CHIEF REGISTRAR
Respondent

Coram : Chandra JA
Almeida Guneratne JA
Amaratunga JA

Counsel : Mr. S Warne and Mr. A Singh for the Appellant
Ms. L Vateitei and Mr. V Sharma for the Respondent

Date of Hearing : 13 May 2014
Date of Judgment : 27 February 2015

JUDGMENT

1. This is an appeal against the judgment and sentence dated 12th September 2012 and 5th October respectively by the Commission of the Independent Legal Services Commission.
   
2. The Appellant was found guilty by the Independent Legal Services Commission of unsatisfactory professional conduct and professional misconduct pursuant to Sections 82 and 83 respectively of the Legal Practitioners Decree 2009 on the following charges:
   
   1. Professional Misconduct: Contrary to Section 82(1)(b) of the Legal Practitioners Decree 2009.
      

Rajendra Chaudhry, a legal practitioner between the 15th of September 2011, to the 29th of September 2011 agreed to act and did act as counsel for Ms. Balaggan in the matter State v. Muskan Balaggan Criminal Case No.CF 1190 of 2011 a case in which he was the victim of a charge of giving false information to a public servant, which conduct occurred in connection with the said Rajendra Chaudhry's practice of law and would justify a finding that the said Rajendra Chaudhry is not a fit and proper person to engage in legal practice.

Particulars

1. The Applicant repeats and relies upon the particulars outlined in count 2, from paragraphs 1 -7.
   
2. The matter was then adjourned to the 29th of September 2011 for the defence to confirm whether or not they would advance the defence of "coercion". On the 29th of September 2011, the second Respondent appeared for Ms.Balaggan to vacate her "guilty" plea. The application to vacate the guilty plea was refused by the learned Magistrate. Ms.Balaggan was sentenced on the same day.
   

Count 5

Unsatisfactory Professional Conduct: contrary to Section 83(1)(a) of the Legal Practitioners Decree 2009.

Rajendra Chaudhry a legal practitioner on or about the 15th of April 2012 showed discourtesy to the High Court namely to Honorable Justice Daniel Goundar in his response to the enquiry made by the Chief Registrar pursuant to Section 105 of the Legal Practitioners Decree 2009 such conduct being in breach of Rule 3.2 of the Rules of Professional Conduct and Practice of the Legal Practitioners Decree 2009, which was an act of unsatisfactory professional conduct.

3. The Appellant filed a notice of appeal and an amended notice of appeal wherein the following grounds were set out:
   
   1. The Appellant was deprived of natural justice in that:
      
      • (a) The conflict/s of duties or the conflict/s of interest and duties; and/or
        
      • (b) Any other reason why the conduct described in charge 4 justified a finding that the was not a fit and proper person to engage in legal practice by reference to which the Chief Registrar asserted, or the Commissioner intended to make findings and set a penalty was or were never clearly nor consistently put to him during the liability phase or the mitigation phase of the disciplinary prosecution or during either phase.
        
   2. For example, neither the Commissioner nor the Chief Registrar ever identified during the hearing with any specificity:
      
      • (a) what interest of the Appellant;
      • (b) conflicted with what duty and the content of the duty;
      • (c) how the interest and the duty conflicted.
        
   3. In failing to articulate those matters in his reasons for the decision, the Commissioner failed to provide an intelligible path of reasoning.
      
   4. A conflict was inadequately articulated in the hearing at pp. 14-15 of the transcript for 31 July 2012. The Chief Registrar appears to have intended to allege, implicitly, that a conflict between duty to Ms. Balaggan and the Appellant's self-interest would arise if 'questions directed by the original complaint of the rape ... come up again in Court', that is, that questions might arise in Court on 15 and 29 September 2011 as to whether the rape really occurred or not. The Appellant was deprived of natural justice in that neither the Chief Registrar nor the Commissioner clearly put to him:
      
      • (a) any alternative species of conflict between duty and duty or conflict between interest and duty by reference to which it was proposed that the Appellant be found to have acted in the face of; or
        
      • (b) any other reason why the conduct described in charge 4 justified a finding that the Appellant was not a fit and proper person to engage in legal practice,
        

yet the Commissioner appears to have made such findings.

Error in finding conduct meant appellant was not fit and proper

5. Further and alternatively, if the Commissioner did make a finding that the Appellant acted in the face of a conflict between interest and duty of the kind articulated at pp.14-15 he erred in making that finding. That is so because:
   
   • (a) Ms. Balaggan had by 15 September 2011 twice made sworn statements, on 4 and 22 July 2011, that the allegations of rape were untrue;
     
   • (b) She had had bail in her drugs case revoked by Madigan J on 28 July 2011 on the basis that she had committed a crime while on bail by making those false statements;
     
   • (c) She had on 4 August 2011 formally pleaded guilty to making a false complaint.
     
   • (d) The Appellant's retainers were limited to an appearance at a hearing on mitigation where his instructions remained that the allegations were false and to advance arguments devised by Ms. Balaggan's independent adviser Mr. Marawai and to appear at an application to change Ms. Balaggan's plea to not guilty on the basis that though the allegations were false, they were the subject of coercion by powerful figures, which application was prompted by submissions made by the Prosecution as to the unsafeness of convicting on the guilty plea, and not opposed by the prosecution;
     

so there was no realistic prospect of questions whether or not the rape really occurred arising in the hearing of 15 or 29 September 2012.

6. Alternatively, the Commissioner erred in finding that any conflict between interest and duty justified a finding that the Appellant was not a fit and proper person to engage in legal practice. That is so because on the evidence, the Commissioner ought to have found that, or found that the Chief Registrar had not excluded the possibility that:
   
   • (a) On 15 September, the Appellant made full disclosure to the presiding Magistrate, Ms Nanise Ratakele, of the circumstances in which he sought leave to appear, and the Court gave him leave to appear. The same hearing continued on 29 September before the same Magistrate.
     
   • (b) For the purposes of professional discipline, the law regulating a practitioner's obligations in a matter where he has a personal interest was rule 2.1(5) which prohibited acting in such matters only where he did not disclose the interest or did not advise the client of a right to seek independent advice.
     
   • (c) Ms. Balaggan knew of the Appellant's interest as the person falsely accused of raping her, and either was independently advised by Mr Marawai who was equally well aware of that interest and who advised her of all her rights or it was reasonable for the Appellant to assume that she had been so independently advised.
     
   • (d) The Appellant informed Ms. Balaggan in relation to 'the issue of conflict that could be inferred.'
     
   • (e) The nature of the retainers was as described in paragraph 5(d) above;
     
   • (f) The Appellant was in fact requested on short notice to take the two retainers in circumstances where despite the Appellant having urged Ms. Balaggan to take advice from Mr. Marawai on the question of the second retainer, Ms Balaggan said and the Appellant believed that Mr. Maraiwai was unavailable and she had been unable to procure alternative representation, which was inherently likely given the extraordinary circumstances in which Ms. Balaggan and the Appellant found themselves.
     
   • (g) The Commissioner erred in finding that on 29 September 2011 other lawyers could have represented Ms. Balaggan in the application on that day.
     
7. The Commissioner exceeded his powers in finding that the Appellant's conduct on 15 and/or 29 September 2011, and/or between those dates, justified a finding that the Appellant was not a fit and proper person to engage in legal practice by reference to matters other than the conflict articulated at pp. 14-15 of the transcript.
   
8. The Commissioner failed to provide an intelligible path of reasoning in that he failed to explain his finding that the Appellant:
   
   • (a) Had a conflict of interest because he knew Ms Balaggan to be mendacious and unreliable;
     
   • (b) Had a conflict of interest because he knew Ms Balaggan had lied at least once in respect of the matter of her mid-June 2011 allegations against the Appellant; [see 43]
     
   • (c) Had a conflict of interest because he had full knowledge of whether he was 'complicit or not in' those allegations; and
     
   • (d) So was not in a position to present Ms Balaggan's case fairly and without favour in all honesty.
     
9. The Commissioner:
   
   • (a) Erred in making those findings and in finding that a conflict of interest arose ... as early as the 15 June 2011, vis a vis MB [Ms Balaggan] v. RC [the Appellant]' if that was intended to mean that there was a conflict between the Appellant's self interest and a professional duty he owed to Ms Balaggan in relation to her mid-June 2011 complaints, including of rape, against him; alternatively.
     
   • (b) Failed to provide an intelligible path of reasoning in not explaining what those words were intended to mean.
     
10. The Commissioner erred in finding that Ms Balaggan's sworn statement of 22 July 2011 told a completely different story from that contained in her sworn statement of f4 July 2011.
    
11. The Commissioner failed to provide an intelligible path of reasoning in that he failed to make clear:
    
    • (a) what was intended by the words 'full knowledge of whether he was complicit or not in the initial allegation' referred to in para 8 (c) above;
      
    • (b) to identify the nature of and content of the practitioner's relevant duty to the court;
      
    • (c) to explain why a solicitor's conflict may be 'overriden' but a barrister's not;
      
    • (d) to explain why the relevant conflict could not be 'expurgated' by 'permission' of the Court (especially if the Commissioner found that the Appellant acted in the face of the conflict between duty to the Court and his self-interest, as he appears to have done) or of Ms. Balaggan;
      
    • (e) why 'In his primary duty to the Court, the Appellant appeared to lose all objectivity in the matter';
      
    • (f) to explain how the Appellant's conduct undermined the dignity of the Court';
      
    • (g) to explain what deceitful advocacy the Appellant had engaged in and against which 'the Court' needed protection; and
      
    • (h) to explain the kind of deception associated with the Appellant that the Court was at extreme risk of being the victim of.
      
12. The Commissioner erred in holding that the Court was at "extreme risk" of being deceived, where no potential deception was identified by the Commissioner and where he should have found that the positions of Ms Balaggan and the Appellant were known to all, including the Court.
    

Collusions and early involvement

13. The Commissioner erred in finding that:
    
    • (a) the Appellant used or manipulated Mr Marawai, and while the Appellant was in Australia prevailed upon him to assist him;
      
    • (b) the Appellant did so with a view to advancing his own interests at the expense of Ms Balaggan's interests;
      
    • (c) the Appellant did so with a view to procuring Ms Balaggan's withdrawal of her allegations against him;
      
    • (d) the Appellant's partner Ronald Gordon was involved in the false complaint prosecution;
      
    • (e) Ronald Gordon acted for her in that case;
      
    • (f) Ronal Gordon did so on the instructions of the Appellant;
      
    • (g) the Appellant was involved in the false complaint prosecution through Ronald Gordon;
      
    • (h) the Appellant briefed Ronal Gordon in relation to Ms. Balaggan;
      
    • (i) there was contact between the Appellant and Ms Balaggan while he was in Australia and after she had made the mid-June 2011 complaints against him;
      
    • (j) the Appellant was relevantly involved in Ms Balaggan's conduct in relation to her false complaint of rape or in the false complaint prosecution prior to mid-September 2011.
      
14. The Appellant was deprived of natural justice in that the Commissioner:
    
    • (a) did not make clear to him that the Commissioner intended to make findings described in sub-paras (a) to (i) of the previous paragraph; and
      
    • (b) in fact reassured the Appellant that it was not suggested against him that he had engaged in any dishonest conduct.
      
15. The Commissioner erred in finding that there was no evidence that the Appellant appeared on 15 September 2011 only on the instructions of Mr Marawai or alternatively failed to provide an intelligible path of reasoning by failing to make clear what 'only on the instructions of Mr Marawai' was intended to mean.
    
16. The Commissioner failed to provide an intelligible path of reasoning in that he failed to say whether he accepted:
    
    • (a) Mr Marawai's evidence that Ms Balaggan informed him that she had asked the Appellant to obtain character references for the purpose of her drug case;
      
    • (b) Mr Marawai's evidence that Mr Marawai was unable to provide the references to Court on 5 September 2011 because he was unable to contact the Appellant while he was overseas;
      
    • (c) Mr Marawai and the Appellant's evidence that he at no relevant time ever discussed the substance of the false allegations case with the Appellant;
      
    • (d) The Appellant's evidence that he did not communicate any character reference information to Mr Marawai at that time but that he had in early 2011 sought the reference for the purpose of a bail variation application before the Commissioner in his capacity as a judge in the drugs case;
      
    • (e) The Appellant's evidence that he was away around 5 September 2011 and there was no communication between him and Mr Marawai while he was away.
      
17. The Commissioner erred in not providing an intelligible path of reasoning in that he failed:
    
    • (a) To identify the indications that the Appellant had used or manipulated Mr Marawai to act for Ms. Balaggan;
      
    • (b) To explain why what he took to be Ms. Balaggan's evidence as to the briefing of Ronald Gordon was accepted despite the finding that she was mendacious;
      
    • (c) To say whether he accepted the rest of Ms Balaggan's evidence, for example her evidence that she was neither influenced nor pressured nor induced by anyone to make her affidavit of 4 July 2011 by which she withdrew her mid-June 2011 allegations against the Appellant;
      
    • (d) To explain why it was 'pertinent' that on 5 September 2011, Mr Marawai told the Magistrate that the Appellant wrote to Ms Balaggan's former employer in Melbourne asking for a character reference.
      

15 September 2011 Written Submissions

18. The Commissioner either:
    
    • (a) Erred in finding that the Appellant told the Magistrate on 15 September 2011 that he had prepared written submissions and did not say that he was handing up Mr Marawai's submissions; or
      
    • (b) Failed to provide an intelligible path of reasoning by not saying whether he accepted the Appellant's evidence that he told the Magistrate that he intended to deliver a plea in mitigation drafted by Mr. Marawai.
      
19. The Commissioner erred in finding that:
    
    • (a) The copy of the 15 September 2011 submissions provided by the Appellant to the Chief Registrar had been tampered with after 15 September 2011;
      
    • (b) The Appellant uttered a forgery by providing that copy of the submissions to the Chief Registrar during the investigation antecedent to the charges;
      
    • (c) In doing so the Appellant attempted to mislead the Chief Registrar and the Commissioner as to the true nature of his appearance on 15 September 2011, if not an attempt to pervert the course of justice.
      
20. The Appellant was deprived of natural justice in that, before making those findings, neither the Chief Registrar nor the Commissioner made clear to him that:
    
    • (a) It was intended that such findings be made and that a penalty be set by reference to them;
      
    • (b) The Commissioner intended to have regard to the Magistrates' Court file in the false complaint prosecution though it was not in evidence;
      
    • (c) The Commissioner intended to draw the inferences from the discrepancy between the copy given by the Appellant to the Chief Registrar and the copy on the file which the Commissioner did in fact make.
      
21. The Commissioner failed to provide intelligible path of reasoning in that he failed to explain why he did not accept:
    
    • (a) Mr Marawai's and the Appellant's and Ms Balaggan's evidence that Mr Marawai had prepared written submissions for 15 September 2011; and
      
    • (b) Mr Marawai's and the Appellant's evidence that on 15 September 2011, Mr Marawai instructed the Appellant to appear for him to present Mr Marawai's written submissions later that day because he was stuck away from Suva.
      
22. The Commissioner failed to provide an intelligible path of reasoning in that he failed to say whether he accepted the Appellant's evidence that he had sought leave to represent Ms Balaggan in the hearing which commenced on 15 September 2011 and that the Court had granted him leave to do so after making enquiry from Ms Balaggan.
    

Discourtesy charge

23. The Appellant was deprived of natural justice in that at no time was it made clear to him which of his statements were said to have been discourteous.
    
24. The Commissioner erred in finding that there was a want of due courtesy to the High Court by the Appellant except in his regretted use of the word 'odious'.
    
25. The Commissioner erred in finding that the publication of the letter of 15 April 2012 exclusively to the Chief Registrar amounted in the circumstances in which the Appellant found himself to 'a falling short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent and or professional legal practitioner' so as to amount to unsatisfactory professional conduct.
    

Sentence

26. The sentence was harsh, unjust and unreasonable because it was based on conduct which the Commissioner ought not to have found (as articulated above) to have occurred and predicated on a lack of insight into the gravity of the conduct which was predicated on the occurrence of that conduct, including a finding of collusion despite an earlier acknowledgement that there was no evidence of collusion."
    
4. It is to be observed that the amended grounds of appeal set out above are far too lengthy and have taken more the form of written submissions. They have been included in this judgment to avoid summarizing the grounds urged.
   
5. For the purposes of dealing with the grounds of appeal it would be useful to set out the sequence of events where Ms. Muskan Balaggan, the Appellant, Justice Madigan and Justice Goundar have featured in the two cases which were brought against Ms Balaggan, namely the Drugs case, which commenced in the Magistrate's Court and later sent before the High Court and the False complaint case which was before the Magistrate's Court.
   
6. Ms. Balaggan had been arrested at Nadi Airport and charged with a drug trafficking offence on 26th January 2011.
   
7. On 11th February 2011 Ms Balaggan was produced before the Magistrate's Court, Nadi and the Appellant had appeared for her and had offered himself as surety and was granted bail. Subsequently a different surety had been appointed.
   
8. On 13th June 2011 Ms. Balaggan had made a statement to the Police that the Appellant had raped and sexually abused her.
   
9. On 4th July 2011 Ms. Balaggan swore an affidavit denying the allegations made by her against the Appellant.
   
10. After being caution interviewed by the Police, Ms Balaggan was charged for giving false information in the Magistrate's Court of Suva on 12th July 2011 and Mr. Vakalaloma had appeared for her instructed by Mr. Maraiwai.
    
11. An application had been made to revoke the bail granted to Ms. Balaggan in the Drugs case on 28th July 2011 before Justice Madigan in the High Court of Lautoka which was granted by Justice Madigan. The Appellant appeared for Ms Balaggan in these proceedings.
    
12. On 4th August 2011 Ms. Balaggan pleaded guilty to the charge of giving false information and Mr. Maraiwai appeared for her in the Magistrate's Court.
    
13. On 1st September 2011 when the drugs case against Ms. Balaggan was taken up, an application had been made for the recusal of Justice Madigan by the Appellant and Justice Madigan recused himself by his ruling of 6th September 2011 and the case was sent before Justice Goundar to be called on 12th September 2011.
    
14. On 15th September 2011 the Appellant had appeared for Ms. Balaggan in the Magistrate's Court in the False Information case on the basis that he was instructed by Mr. Maraiwai and also by Ms. Balaggan. The Appellant had sought leave from the Magistrate to appear for Ms. Balaggan and leave had been granted to him and he had filed written submissions and sought permission to change the plea.
    
15. On 29th September 2011 the Appellant had appeared for Ms. Balaggan in the Magistrate's Court, in the False Information case, and the Magistrate had refused the application to allow her to change her plea and had proceeded to convict and sentence Ms. Balaggan.
    
16. Ms. Balaggan had instructed the Appellant to file an appeal against her conviction and sentence which he had done on 12th October 2011.
    
17. When the appeal against Ms. Balaggan in the False Information case came up before Justice Goundar on 11th November 2011, on the Appellant being questioned by Justice Goundar as to whether there was a conflict of interest in his appearing for Ms. Balaggan, the Appellant had withdrawn.
    
18. On 29th of February 2012 when an application had been made regarding the transfer of the Drugs case against Ms. Balaggan from Lautoka to Suva which had come up before Justice Goundar, the Appellant had appeared for Ms. Balaggan and Justice Goundar by his ruling dated 9th March 2012 had dismissed the application regarding the transfer.
    
19. The Appeal in the False Information case of Ms. Balaggan had been taken up again before Justice Goundar on 2nd March 2012, with Ms. S.Vaniqi appearing for Ms. Balaggan. Justice Goundar directed his decision and records of the appeal to be forwarded to the Chief Registrar for an independent inquiry into the professional conduct of Mr. Vakalaloma, Mr. Marawai and the Appellant as legal practitioners under the Legal Practitioners Decree on the issues raised in his decision and postponed further hearing of the appeal pending the outcome of the inquiry.
    
20. When the Drugs case against Ms. Balaggan had come up before Justice Goundar on 15th March 2012 with the Appellant appearing for Ms. Balaggan, a ruling had been made disqualifying the Appellant from appearing for Ms. Balaggan.
    
21. The Chief Registrar had required the Appellant to provide an explanation as to the reasons for acting for Ms. Balaggan, by letter dated 2nd April 2012 which was a sequel to the reference made by Justice Goundar by his decision of 16th March 2012.
    
22. The Appellant had sent his explanation by letter dated 15th April 2012 to the Chief Registrar.
    
23. Consequent to the explanation sent by the Appellant, the charges were issued against the Appellant to be inquired into by the Independent Legal Services Commission.
    
24. The Independent Legal services Commission inquired into the charge and the Commissioner (Justice Madigan) by his judgment dated 12th September held that the charges against the Appellant had been established and by his order dated 5th October 2012 sentenced the Appellant as follows:
    
    1. The said Rajendra Chaudhury be suspended from practice as a legal practitioner in Fiji until 1 March 2017;
       
    2. That he be publicly reprimanded.
       
    3. That he pay costs to the Commission of $1,000, such loss to be shared equally between the Commission and the Legal Practitioner's Unit of the Chief Registrar's Office.
       
    4. That in order to hand over his current matters, Mr. Chaudhry be allowed to remain in practice for the next 21 days until 5 p.m. on October 26,2012, however in that period he is not to appear in Court, nor accept any new instructions from either existing or new clients.
       

5. He only be re-certified as a practitioner by the Chief Registrar on the proof of having undertaken 5 hours of training in Legal Ethics by an institution or tutor acceptable to the Chief Registrar.

The First Charge

25. The first charge related to the Appellant agreeing to act and acting as Counsel for Ms. Balaggan between 15th September 2011 to the 29th of September 2011 in State v. Muskan Balaggan Criminal Case No. CF 1190 of 2011.
    
26. The charge as set out by the Respondent related to the issue of the Appellant having a conflict of interest by appearing for Ms. Balaggan who was charged for giving false information to the Police which related to an allegation made against the Appellant and the denial of the same subsequently.
    
27. There would have been a conflict if the initial allegation remained. But the question that arises is whether the conflict remains once the allegation is denied. Should Counsel against whom the initial allegation was made appear for such a client?
    
28. In the present case, the accused who made the allegation and subsequently denied it, was charged for having given false information and was convicted and sentenced. Even though she appealed against the conviction and her sentence, she subsequently withdrew her appeal against her conviction.
    
29. From the sequence of events cited above, several issues arise regarding the appearance of the Appellant for Ms. Balaggan:
    
    • (i) When the Appellant appeared before the Magistrate on 15th September 2011and stated that he was appearing on instructions of Mr. Marawai and by the client and seeking leave from the Magistrate to appear, the Magistrate granted him leave to appear.
      
    • (ii) Justice Madigan dealing with the Drug case against Ms. Balaggan and dealing with the application which revoked bail which had been granted to Ms. Balaggan and thereafter recusing himself (on 6th September 2011) from taking up the trial against Ms. Balaggan when the Appellant appeared for Ms. Balaggan not raising any issue as regards any conflict of interest. In the course of his ruling regarding recusal Justice Madigan refers to the allegation of Ms. Balaggan against the Appellant and the subsequent withdrawal of the allegation and Ms. Balaggan being charged in the Magistrate's Court for giving false information and pleading guilty to the charge, the ruling being prior to Justice Goundar raising the issue in the Appeal case and the Drugs case of Ms. Balaggan.
      
    • (iii) Justice Goundar not raising any issue regarding conflict of interest when dealing with the transfer application in respect of Ms. Balaggan's case regarding the Drugs charge when it came up before him on 29th February 2012 and when he gave the Ruling on 9th March 2012 when the Appellant had appeared for Ms. Balaggan.
      
    • (iv) Justice Goundar raising the issue of conflict of interest when hearing the appeal of Ms. Balaggan on 11th November 2011 and the Appellant withdrawing from the case.
      
    • (v) Justice Goundar raising the issue of conflict of interest of the Appellant and disqualifying him by his Ruling of the 16th March 2012 when the Drugs Case against Ms. Balaggan was taken up before him on 15th March 2012.
      
    • (vi) Justice Goundar raising the issue of conflict of interest of the Appellant in the Appeal of Ms. Balaggan regarding the False Information case when the Appellant did not appear on 2nd March 2012. In that decision Justice Goundar only dealt with the issue of conflict of interest of the Appellant, Mr. Vakalaloma and Mr. Marawai in relation to the manner in which they had appeared and conducted the case before the Magistrate's Court and postponed the appeal case pending the inquiry by the Registrar of his referral for inquiry against the said three Legal Practitioners. In the course of the decision Justice Goundar stated that there is an issue of the Appellant representing Ms. Balaggan in the circumstances of clear conflict of interest.
      
    • (vii) The Commissioner of ILSC (Justice Madigan) in his Judgment dated 12th September 2012 at paragraph 40 stated as follows:
      

"40. As soon as MB makes her allegations of rape against RC on 13 June 2011, he then becomes "functus" or "hors de combat". It matters not how many times she might withdraw the allegation or swear that it wasn't true, RC is tainted by the allegation. Only she and he know whether there is any truth in the allegation. He therefore can never fulfill his duty either to the Court or to the client in respect of proceedings predicated on that allegation. He is compromised; even after she pleads guilty to making a false statement with regard to the initial allegation. By that plea, she has proved herself to be mendacious and unreliable, and RC her Counsel knowing that, is no longer in a position to assist the court in his duty to the Court. It is not for the Court to permit him to appear, nor is it for the prosecution to raise objection. Once the conflict arises it is always there in the relationship between RC and his client and no "permission" or signed authority can ever remove it. It is the practitioner's duty to the court to present a case fairly and without favour in all honesty. That could never be achieved in this case."

And at paragraph 45 the Commissioner stated:

"45. As discussed earlier, a conflict of interest arose in this case as early as the 15 June 2011, vis a vis MB v RC; it could not be removed by authorization or by appearing on instructions of another; it could not be removed by the consent of the court or tacit approval of the DPP. There was an obvious and clear conflict of interest; Mr. Chaudhry appeared and acted for MB on 15 September and 29 September despite that clear conflict and therefore the charge as complained in Court on the application is established."

Analysis of the Judgment of the ILSC

30. It is proposed to deal with the grounds of appeal taken as a whole as the main theme of the grounds relate to "conflict of interest" and the manner in which the Commissioner had dealt with the same in his judgment. The First Charge is based on Section 82(1)(b) of the Legal Practitioners Decree 2009 which deal with Professional Misconduct.
    

"S.82. (1) For the purposes of this Decree, 'professional misconduct' includes –

(a) unsatisfactory professional conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; or

(b) conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or that the law firm is not fit and proper to operate as a law firm.(Emphasis added)."

31. The charge therefore is on the basis of the Appellant's practice which involved his appearing for Ms. Balaggan on the 15th and 29th of September 2011 in the Magistrate's Court where Ms. Balaggan had been charged for giving false information, the false information being on the basis that she made an allegation against the Appellant and subsequently withdrew the same.

32. A practitioner in appearing for a client has a duty towards the client as well as towards the Court. G.E.Dal Pont in Lawyers' Professional /Responsibility (4th Edition) at page 143 states regarding Lawyer-Client relationship –

"Basic fiduciary principle, which applies to the lawyer-client relationship, dictates that lawyers must give undivided loyalty to their clients, "without being distracted by other interests including personal interests" Central to fostering loyalty is the prohibition on lawyers engaging with their clients in circumstances involving a conflict of interest and duty, namely where the lawyer's own interests are not coincident with those of the client ... ."

At page 369 regarding Lawyer as an officer of the Court –

"From the earliest times lawyers have been characterized as officers of the court. Accordingly, the lawyer's duty to the court is "paramount" or overriding", a point reflected in barristers' rules in most jurisdictions, which state that the administration of justice is best served by reserving the practice of law to those who owe their paramount duty to the administration of justice. To the extent that the duty to the courts conflicts with a duty to the client, the former duty must prevail."

33. Misconduct by a legal practitioner would entail a situation where there is a breach of the duty to court by a practitioner in relation to the duty owed to the client in the practice of the law by him. The question therefore arises in the present case as to whether there was such a misconduct committed by the Appellant by acting in the manner complained of in the charge.

34. Since misconduct by legal practitioners could have serious consequences in relation to their continuing in the profession, proof of such misconduct must be of a fairly high standard. In dealing with the particular conduct of a legal practitioner the question would also arise as to whether it would be viewed objectively and in relation to how such misconduct would appear to the public eye.

35. In the present case as shown above, the Magistrate before whom Ms. Balaggan was charged, granted leave to the Appellant when he sought leave to appear which would appear to be a situation where the Magistrate did not consider there to be a conflict of interest. When the Appellant appeared for Ms. Balaggan before the Commissioner when he functioned as a High Court Judge in relation to the Drugs case even after the allegation had been made regarding the Appellant and withdrawn by Ms. Balaggan, he did not express any view regarding any conflict of interest., when the Appellant appeared for Ms. Balaggan before him.

36. It is in this state of affairs that the Commissioner in his judgment of the ILSC states that the conflict arose the moment the allegation was made by Ms. Balaggan and no amount of withdrawal of such an allegation would take away the conflict whether by not objecting to such appearance or by the Court allowing such appearance to be made. This view is different from the position posed by the Respondent.

37. The Commissioner in paragraph 40 of his judgment (quoted above) started off by stating that "as soon as MB makes her allegation of rape against RC on 13th June 2011, he then becomes "functus" or "hors de combat". The use of the term "functus" is usually used in relation to the holder of an office or position and apparently what the Commissioner has meant is that the Appellant had no right to represent Ms. Balaggan once the allegation had been made. The ordinary words "hors de combat" means "disabled" and are usually used in relation to combat in wars. The Commissioner appears to have used such words to show that the Appellant was disabled from representing Ms. Balaggan.

38. When the Commissioner was functioning as a High Court Judge, he had not expressed any views regarding any conflict when the Appellant appeared before him for Ms. Balaggan. Eventhough he was aware of the False Information charge case as was set out by him when he recused himself in the Drugs case, in his judgment he refers to paragraph 8 of Justice Goundar's ruling of 16th March 2012 where the reference to the Chief Registrar was made to have an inquiry, and states that "There is every likelihood and every incentive for either MB or the court to be manipulated in favour of RC. Therein lies the conflict of interest that RC is burdened with." In the proceedings before the ILSC of 31st July 2012 the Commissioner referring to the Appellant's contention that there was no evidence of what Justice Goundar had stated in the said paragraph 8 that there appeared to be collusion between counsel to get Ms. Balaggan to plead so that any investigation against him would be deflected, stated that it was "speculation". However, having stated that it was speculation, he has made use of Justice Goundar's observation to say there was every likelihood and every incentive for either MB or the Court to be manipulated in favour of RC and therein was the conflict that the Appellant was burdened with. This is not a satisfactory inference that could be drawn from the evidence that was before the Commissioner. It was more an endorsement of Justice Goundar's views regarding the Appellant.

39. The inquiry before the Commissioner was not regarding possible collusion between counsel but regarding the specific charges against the Appellant. The Commissioner by coming to such a conclusion regarding the conflict of interest of the Appellant has erred in the absence of evidence to support such a charge. Such a conclusion is an endorsement of Justice Goundar's views regarding collusion. This is specially so as Ms. Balaggan had pleaded guilty to the charge of giving false information, at which stage the Appellant had not appeared for her. It was thereafter that the Appellant appeared for her and sought to change the plea which was refused by the Magistrate. Ms. Balaggan was convicted and sentenced on her own plea of guilt. There was an appeal against her conviction and sentence, regarding which the appeal against conviction was dropped subsequently. In that situation the likelihood and speculation theories could not have arisen and consequently the conflict that he set out did not arise.

40. It would appear that the Commissioner had been influenced by the findings of Justice Goundar in his Rulings and decision where Justice Goundar had concluded that there was a conflict of interest. The Commissioner had to assess the evidence before him in considering whether there was a conflict of interest which gave rise to the misconduct alleged with an independent mind and independently of the views of Justice Goundar. The manner in which the Commissioner has dealt with Justice Goundar's views gives the impression that his conclusions were based on those views and therefore not dealt with independently on the evidence placed before the Commission.

41. During the course of the proceedings the Commissioner sought the Respondent's view regarding the conflict and the Respondent's view (at p.289) was that "the Appellant who was alleged to have raped Ms. Balaggan came back, played the upper hand in being her Counsel. She was the vulnerable party and it was possible that the original complaint of the rape might come up again in Court. He had not explained to her the risks involved in his representing her. If he could not explain the risks involved he should have asked her to find another lawyer which he did not and appeared for her". This basis of the conflict was therefore based on the speculation of the rape charge coming up again. There was no evidence of such a situation. The Commissioner of the ILSC has gone on a different basis and he has in his judgment arrived at the conclusion that acting for his client after she had made the initial allegation brought about the conflict. His conclusion is based on the relationship between the Appellant and the client which he states was always there. He states further knowing that, by pleading guilty, she has proved herself to be mendacious and unreliable, the Appellant, her Counsel, is no longer in a position to assist the court in his duty to the Court. He therefore concludes that the Appellant could not achieve the duty to court of presenting a case fairly and without favour in all honesty. The conclusion of the Commissioner regarding the conflict of interest is different from what the Respondent had placed before the Commission regarding the charge against the Appellant. The Commissioner's conclusion that once an allegation is made against Counsel a conflict arises is not supported by any authority and would give rise to a situation which would create a precedent so that a Counsel will not be able to appear for a client who has lied about an allegation made regarding his or her counsel. It is well known that generally offenders would not be the most truthful persons before a Court of Law. Counsel do appear for them when instructed by such clients and can still carry out their duty to Court honestly. Further if a Court grants leave in such a situation where a Counsel seeks leave to appear that would show that there would be no appearance of any conflict. The Commissioner's view that a court granting permission to appear in such situations would not take away the conflict would be far reaching and would undermine the authority of the Court granting such leave.

42. There was no charge of dishonesty against the Appellant. However, the Commissioner adverting to the Appellant's appearance in the Magistrate's Court on 15th September 2011 stated that the Appellant had tampered with the written submissions and that was an act of dishonesty. The Commissioner had drawn his conclusion by comparing the written submissions filed in the Court and the copy appended to the Appellant's explanation to the Registrar, stating the one submitted to Court bore his initials and the one appended to the explanation was different because it said that it was prepared by Mr. Marawai. The Appellant had stated to Court "I have prepared written submissions" and on that basis the Commissioner has assumed that the written submissions were prepared by the Appellant. The recording in that manner can be ambiguous and could mean "I have with me written submissions which have been prepared", which may have been prepared by someone else and at that time Mr. Marawai was instructing the Appellant. This was the explanation given by the Appellant in his explanation to the Registrar. In these circumstances, when there was no charge of dishonesty, the Commissioner had gone beyond the scope of the inquiry in imputing dishonesty to the Appellant.

43. The Commissioner at paragraph 43 of his judgment has stated that the Court was at an extreme risk of being deceived on the basis of the Appellant's appearance on the 29th of September 2011. He has formed the view that it was apparent that the Appellant was trying to achieve a favourable result for Ms. Balaggan while in full knowledge that she had lied at least once in respect of the matter and in full knowledge of whether he was complicit or not in the initial allegation. Ms. Balaggan had pleaded guilty to the charge before the Magistrate's Court which related to her making a false allegation regarding the Appellant, and all that the Appellant was trying to do was to see whether the plea could be changed, which attempt failed as the Magistrate refused to allow the accused to change her plea. It is for this conduct of the Appellant that the Commissioner has formed the view that the Court was at an extreme risk of being deceived which appears to be too far fetched and not a satisfactory conclusion.

44. For the reasons set out above it is the conclusion of the Court that Charge One framed against the Appellant was not established and that the Commissioner erred in arriving at the conclusion that the said charge was established.

The Second Charge

45. The second charge is based on Section 83(1)(a) of the Legal Practitioners Decree 2009 which states as follows"

"83(1) Without limiting sections 81 and 82, the following conduct is capable of being "unsatisfactory professional conduct" or professional misconduct" for the purposes of this Decree:

(a) Conduct consisting of a contravention of this Decree, the regulations and rules made under this Decree, or the Rules of Professional Conduct;" (Emphasis added).

46. Rule 3.2 of the Rules of Professional Conduct and Practice set out in the Schedule to the Legal Practitioners Decree states:

"A Practitioner shall at all times (i) act with due courtesy to the Court."

47. This charge was in respect of the contents of the letter of explanation sent by the Appellant to the Chief Registrar on 15th April 2012. In the said letter the Appellant had made the following remarks referring to Justice Goundar:

"1. Goundar J's decision of 16 March 2012 is clearly an anathema to accepted judicial practice. The writer has yet to come across a circumstance where a Judge goes beyond materials that constitute Court record to make very personal, unsubstantiated and disparaging comment about counsel. His decision of 16th March 2012 is even more odious .......

2. The Judge was clearly acting with a pre-conceived opinion with the sole intention to embarrass the writer and to postulate that MB"s statement was not false. Such an assumption without knowledge of the facts or based on the imprecise notes of the Magistrate's Court record is contrary to good judicial practice."

48. This charge against the Appellant was found to be established by the Commissioner.

49. The Appellant's arguments against this finding were that it was not made clear to him as to which statements were discourteous, that the Commissioner had erred in finding that there was a want of due courtesy and that the publication of the letter exclusively to the Chief Registrar did not amount to conduct which amounted to unsatisfactory professional conduct.

50. It was made quite clear to the Appellant at the inquiry before the Commissioner as to the statements in his letter which showed that he was discourteous to Justice Goundar. The two paragraphs cited at paragraph 42 above were the paragraphs which contained the discourteous statement.

51. The Commissioner's finding that the words used in the letter of the Appellant directly transgressed the Rules of Professional Conduct cited above is an appropriate finding when the two paragraphs in the Appellant's letter are taken into consideration.

52. The Commissioner's finding that the Appellant's letter to the Chief Registrar was discourteous and offending Rule 3.2 of the Rules of Professional Conduct is a correct finding when considering the contents of the letter written by the Appellant to the Chief Registrar. Utmost respect has to be shown to Court and the members of the Judiciary and however unfavourable rulings, or decisions given by Judges of the Court would be, Practitioners have to be courteous to the Judges not only in Court but also in their writings regarding explanations called for by the Chief Registrar regarding any disciplinary procedures which was the case here.

53. The Appellant had sent a letter of apology to Justice Goundar on 20th
September 2012 stating that, he realized that he had a duty at all times to the Court and had now realized and made aware of the high standards of professional practice and respect and duty to Court expected of a practitioner; that he was sincerely apologetic and wished to say that it was not intended to offend his Lordship or the Court.

54. By the time the apology was sent, the decision of the Commissioner had been handed down. Nevertheless, it cuts across the arguments pursued by the Appellant which as shown above do not have any impact on the findings of the Commissioner regarding this charge.

55. The appeal of the Appellant fails as regards the finding of the Commissioner on the second charge.

56. The 1st order regarding the suspension of the Appellant shall be till 1st March 2015 and the rest of the orders shall remain except order No.4 regarding the Appellant remaining in practice till 26th October 2012 which has now become academic.

Orders of Court

(1) The appeal is partly allowed as the finding of the Commission in respect of the 1st charge against the Appellant is set aside.

(2) The findings of the Commission on the 2nd charge against the Appellant is affirmed.

(3) The Appellant's period of suspension is reduced to three (3) years and he shall remain suspended till 1st March 2015.

(4) The other orders made by the Commission, except order No.4 shall remain.

Hon. Mr Justice Chandra
JUSTICE OF APPEAL

Hon. Mr Justice Almeida Guneratne
JUSTICE OF APPEAL

Hon. Mr Justice Amaratunga
JUSTICE OF APPEAL