'Etika v Tonga Law Society [2002] TOSC 13; C APP 0004 2001 (2 April 2002)

IN THE SUPREME COURT OF TONGA
CIVIL APPEAL JURISDICTION
NUKU’ALOFA REGISTRY

NO.C.APP.04/2001

BETWEEN:

SIONE ‘ETIKA
Appellant

AND:

TONGA LAW SOCIETY
Respondent

BEFORE THE HON MR JUSTICE FORD

COUNSEL: The appellant in person and Miss Simiki as amicus curiae.

Date of hearing: 1 March 2002.
Dates of submissions: 15 and 25 March 2002.
Date of judgment: 2 April 2002.

JUDGMENT

The appellant is a law practitioner in the Kingdom holding a current practising certificate. He has appealed to this Court against a decision of the Disciplinary Committee of the Law Society dated 28 November 2000. The Committee acting on a complaint by Afei 'Ahokava of Folaha, found that the appellant had a conflict of interest during part of the period that he was acting for the complainant back in 1996/97. The Committee concluded that the appellant should be disciplined. It recommended to Chief Justice Ward that the practitioner's practising certificate be suspended for 3 months and that he pay costs of $300 to the Law Society.

The relevant background facts, as summarised in the Committee's decision, were that in 1996 the appellant was retained by the complainant to bring a civil action against Koto Heavy Duty Co Ltd ("Koto"). It was alleged that, while carrying out coral quarrying work on the complainant's tax allotment pursuant to an agreement Koto had with the complainant, the company had removed top soil and a large mango tree without permission.

The appellant was counsel for the complainant in the civil action against Koto in which $4572 was claimed for the loss of the mango tree and $2000 for damage to the land. On the day of the trial in July 1997 the judge pointed out to the appellant that the coral quarrying agreement might be in breach of section 13 of the Land Act (CAP. 32 of 1988) and therefore illegal. The case was adjourned sine die to allow the complainant to amend his statement of claim to overcome any such problem.

It appears that thereafter nothing further happened despite the fact, as found by the Committee, that the complainant called on the appellant on numerous occasions to check progress with the amended statement of claim. In his complaint to the Law Society the complainant alleged that the appellant had, subsequently to the aborted trial, become counsel for Koto without his knowledge or consent.

The appellant denied that he had ever acted as counsel for Koto but he admitted that for the period between October 1997 and January 1998 he acted for a Mr Seong, the managing director of Koto. The appellant held a full power of attorney to act for and on behalf of Mr Seong while he was out of the Kingdom visiting Korea during that three-month period.

Referring to this aspect of the case, the Committee noted in its decision:

"The (appellant) says that he had no conflict of interest when he acted for Mr Seong because he said that Mr Seong was having a dispute and claim against Koto, that the machinery belonged to Mr Seong and were misused by Koto, so Mr Seong had a right to take them away from Koto. He says that Mr Seong's claim against Koto was no different from the complainant's claim against Koto and that as he was acting for both of them against Koto, there was no conflict of interests for him."

Earlier, the Committee had referred to the power of attorney produced at the hearing which Mr Seong had signed and noted that it appointed the appellant Mr Seong's attorney to represent him not only in relation to his personal affairs but also in his capacity as managing director of Koto.

At the appeal hearing the appellant acknowledged that the wording of the power of attorney had placed him in what he accepted was a "technical conflict of interest situation" but he repeated what he had said to the Committee, namely, that the reality was at no stage had he ever acted for Koto.

The Committee concluded:

"The Committee finds that the (appellant), by reason of his appointment and acting as counsel for Mr Seong who had a claim against Koto and for Mr Seong as managing director of the company Koto Heavy Duty Co Ltd, against which the complainant had brought his action, had a conflict of interests, on the one hand that of the complainant to collect payment from the company for his lost mango tree and damages to his land, and, on the other hand, that of the company to dispute any claim made against it and that of Mr Seong who had a claim against the company for the machinery. The (appellant) ought to have appreciated that such a conflict would arise and should not have accepted to act for Mr Seong at all, except with express approval of the complainant. No such approval was given.

As a result of so acting for Mr. Seong, the (appellant) was not able to attend to the amendment of the claim of the complainant and was not able to seek any trial date and did not in any way progress the claim of the complainant against the company.”

The appeal is brought under section 23 of The Law Practitioners Act (CAP. 21 of 1989) which provides that the procedure to be followed is the same as an appeal under Part VII of the Magistrates' Courts Act. The court was told that this is apparently the first appeal under the Law Practitioners Act.

The appellant focused his submissions on what he described as the "adverse, unfounded conclusions" which the Committee reached about the conflict of interest in his acting for Mr Seong. In essence, his submission was that even if there had been a conflict of interest situation in his acting for Mr Seong, and he admitted only to a “technical conflict”, there was no evidence before the Committee to support its conclusions that that was the reason why the complainant had not been able to proceed with his claim and obtain judgment.

The evidence revealed in the handwritten notes, which were the only record of the proceedings of the Disciplinary Committee hearing, tend to support the appellant's submissions in this regard but it appears to me that there is an even more fundamental objection to the Committee's decision. It is a jurisdictional issue.

Section 20 of the Law Practitioners Act provides for the making of complaints to the Disciplinary Committee and it sets out the procedure to be followed by the Committee when acting upon a complaint. Section 21 (1) then provides:

“where –

(a) the Committee is satisfied after hearing a complaint against a law practitioner that he has been guity of professional misconduct; or

1. ...
   

the Committee may exercise its powers under this section.”

(emphasis added)

Subsection (2) then sets out the disciplinary options available to the Committee. It has the power to:

• recommend that the name of the law practitioner be struck off the Roll;
  
• recommend that the practitioner's practising certificate be suspended for a fixed period;
  
• recommend the imposition of a fine not exceeding $1000;
  
• censure the law practitioner.
  

Before the Committee can exercise any of these powers, it must be satisfied, after hearing the complaint, that the practitioner has been guilty of “professional misconduct”. In other words, it is not sufficient for the Committee to investigate and conclude that the complaint has been proven or that it has substance; it must go further and determine whether or not the practitioner has been guilty of “professional misconduct”. No such finding was made by the Committee in the present case. The decision states:

“The Committee finds that the Respondent did have a conflict of interests.”

Nowhere, however, does the decision record that the Committee found the practitioner guilty of “professional misconduct”.

One can perhaps better illustrate the significance of this two pronged approach by taking the situation had the complainant lodged his complaint earlier in time and confined it to the delays on the practitioner's part in attending to the filing of the amended statement of claim. The Committee, after investigation, may well have upheld the complaint and found that there were delays. It would not have automatically followed, however, that the majority of members of the Committee would then have been prepared to hold that those same delays meant that the practitioner had been guilty of the serious charge of "professional misconduct".

Likewise, on the facts as they stand, it cannot be assumed that members of the Committee who were prepared to find that a conflict of interest situation existed, would have been prepared to go further and hold that the facts established that the appellant had been guilty of professional misconduct. Not every substantiated complaint is inherently serious enough to establish a charge of professional misconduct.

In any event, there is no room for speculation. The standard of proof required for a serious charge like professional misconduct, which could result in a practitioner being struck off the Roll or suspended, is a high standard. In Bhandari v Advocates Committee [1956] 3 All ER 742,745, the Privy Council, in the case of a solicitor who had been found guilty of professional misconduct, endorsed the following passage on the onus of proof from the judgment under appeal:

"We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities."

In re A Solicitor [1993] QB 69, 8 Lord Lane, delivering the judgment of the court, criticised as “not altogether helpful” the Bhandari approach in so far as it left the burden of proof somewhere undefined between the criminal and the civil standards. The Court of Appeal preferred the following exposition from the Canadian decision, In re Shumiatcher and Law Society of Saskatchewan (1966) 60 DLR 318;

“When a complaint is made against a solicitor which may result in his suspension or disbarment, effect should not be given thereto unless the grounds of the complaint are established by convincing evidence, and when the complaint involves a criminal act, by evidence establishing the grounds beyond a reasonable doubt. In the assessment of the evidence, the solicitor’s explanation should be accepted if there is a reasonable probability of it being true.”

In the present case, we are not dealing with an alleged criminal act, but it is clear from the cases that the appropriate standard of proof for the Committee to apply is still a high standard and I see no reason why it should not be described, utilizing both the above cited references, as a high standard of proof based upon convincing evidence.

The high standard of proof requirement is a particularly relevant factor in a case like the present where it would appear from the evidence and from the decision itself that it was open to infer different scenarios from the proven facts. Those scenarios would range from the appellant's concession of the existence of a "technical" conflict of interest to something more sinister.

The cases indicate that professional misconduct should only be found where the conduct could reasonably be regarded as disgraceful or dishonourable or “inexcusable negligence ... which is such as to be regarded as deplorable by his fellows in the profession” – Re a Solicitor [1972] 2 All ER 811, 815.

Unless the Committee is satisfied that the practitioner has been guilty of professional misconduct, then it cannot exercise any of the disciplinary options set out in section 21 (2) of the Act. It does not appear on the face of the decision that the Committee ever reached such a conclusion in the present case.

In written submissions presented after the hearing, the appellant sought leave to raise a new issue. He submitted that the Committee’s decision was ultra vires because the vice president of the Law Society had not been present at the hearing. The submission concludes:

“The Act provides that the Disciplinary Committee “shall” consist amongst others (of) “the Vice President” and in his absence the sitting of the Committee is unlawful and any decision it may make is void.”

I find that this is an overstatement of the position. Rule 23.1 of the Constitution of the Tonga Law Society which is set out in the Second Schedule to the Act provides that the disciplinary Committee shall consist of the President, Vice President and not less than one nor more than three other Council members appointed by the Council. It is noted in this regard that section 19(3) of the Act provides, “not less than 2 nor more than 4”, and, of course, the provisions of the Act must prevail.

Rule 23.4 of the Constitution deals with a quorum. It provides that any three members of the Committee, who must include the Chairman, constitute a quorum. The decision in question was signed by the Chairman and 3 other members. The Chairman, who was also President of the Law Society, explained in a covering letter that the decision was not signed by the vice chairman because he was acting for Koto in the case which the complainant had brought against the company.

Nevertheless, it is clear to the court that the quorum requirements in the Law Society Rules were complied with and so, if it had been necessary to admit this additional ground of appeal, it would not have been upheld.

For the reasons mentioned earlier, the appeal against the decision of the Disciplinary Committee dated 28 November 2000 is allowed and the decision is quashed. As the appellant appeared on his own behalf there will be no order as to costs.

NUKU'ALOFA: 2^nd April, 2002

JUDGE