Professional misconduct findings against 3 attorneys overturned

Chief Justice Ronnie Boodoosingh. - File photo

THE Court of Appeal has overturned findings of professional misconduct against three attorneys, ruling that the Disciplinary Committee of the Law Association (LATT) denied them a fair hearing and acted outside proper procedure.

In a consolidated judgment delivered by Chief Justice Ronnie Boodoosingh, with concurring opinions from Justices of Appeal Nolan Bereaux and Maria Wilson, the court allowed appeals by attorneys Dinesh Rambally, Karina Singh and Desiree Sankar and set aside reprimands imposed on them in April 2024.

The appeals arose from complaints filed in December 2020 by Michael Dhanoosingh, who alleged conduct unbecoming against the attorneys in relation to their representation of him in property litigation involving the sale of family-owned land in Aranguez.

Dhanoosingh was unrepresented before the disciplinary committee and did not appear or participate in the appeal.

The committee investigating Dhanoosingh’s complaint was chaired by committee vice chairman Ian Benjamin, SC, and comprised members: Marcelle Ferdinand, Jo-Anne Julien and former independent senator Hazel Thompson-Ahye.

It had found the attorneys guilty of professional misconduct under Part B, Rule 18 of the Code of Ethics, which prohibits inexcusable or undue delay, negligence or neglect, and issued reprimands. The Court of Appeal ruled these findings could not stand.

Boodoosingh said the disciplinary process “did not, unfortunately, demonstrate” the structured approach required under the Legal Profession (Disciplinary Proceedings) Rules.

“There was an absence of the structured approach to a disciplinary hearing that both the complainant and the attorneys might have been expected to have.”

He stressed that disciplinary hearings must follow a two-stage process, beginning with a preliminary assessment of whether a prima facie case exists, followed by a properly constituted hearing if such a case is established.

“The consequence of a finding of misconduct against an attorney is a serious matter,” the chief justice wrote, noting it can leave “a stubborn stain on his or her career, difficult to wipe away.”

The court found that the committee failed to require the complainant to particularise his allegations, did not clearly identify the specific breaches alleged, and did not subject the complainant’s assertions to cross-examination.

Instead, the hearings evolved into what the court described as an unstructured discussion that culminated in findings of guilt without clear reasons.

“One understands that a complainant may not be legally represented. A complainant might have no money to pay another lawyer to bring a complaint, or may be jaded and not wish to engage another lawyer because they may, justifiably or not, have lost faith in lawyers.

“In such a case, the committee must exercise its powers as any other tribunal being faced with an unrepresented litigant, guiding them on procedural matters as needed.

“Bearing in mind, this is an aspect of a self-regulated profession where the committee is charged with the responsibility for maintaining and enforcing high standards, the process must be simple enough and afford some flexibility.

“However, this is not an excuse to short cut the usual safeguards that someone who has been accused of misconduct should also have.

“The consequence of a finding of misconduct against an attorney at law is also a serious matter for the attorney and can constitute a stubborn stain on his or her career, difficult to wipe away.”

Boodoosingh noted that the committee appeared to have engaged in trying to understand the complaint after which the hearing “then morphed into a finding of guilt, and a discussion on an appropriate penalty…

“What occurred from the printed record in these proceedings was a rolling discussion over the six-day period between the chairman of the committee, with brief interventions by two other members, which culminated in a finding of misconduct and a reprimand being imposed. The transcripts do not demonstrate any reasoning as to why the committee found the three attorneys to be guilty of professional misconduct. There was a discussion of the nature of the penalty, but no clear opportunity was given for a mitigation plea to be made.”

Bereaux, in a detailed judgment, said the committee was “plainly wrong” and committed multiple errors, including entertaining complaints that were vague and lacking in particularity, and then formulating a new complaint of its own. He criticised the committee for raising, on its own initiative, concerns about the adequacy of legal advice surrounding a consent order—an issue that was not clearly raised by Dhanoosingh in his affidavits.

“There was no evidence from Mr Dhanoosingh that that was his complaint,” Bereaux said. He noted that the attorneys were effectively confronted with a new allegation midstream.

The court noted that Dhanoosingh’s affidavits against each attorney were virtually identical and did not specify how each lawyer’s conduct amounted to misconduct. By contrast, the attorneys filed detailed affidavits outlining their actions in the matter, including correspondence, court appearances and advice given. That evidence was not challenged or contradicted.

“It misdirected itself as to the nature of the complaint and the facts to be considered in regard to the complaint.

“The approach of the committee in the determination of the case against the appellants was a masterclass in how a disciplinary tribunal should not conduct itself,” Bereaux wrote.

“There was nothing in Mr Dhanoosingh’s complaints that was demonstrative of some form of misconduct.

“The complaints ought not to have led to a ‘full-blown’ disciplinary hearing. The appellants did not know the case they had to answer. To have required them to endure the oppression of disciplinary proceedings was unfair, harsh and unreasonable.”

Wilson, in her concurring opinion, underscored that while disciplinary proceedings may allow some flexibility when a complainant is unrepresented, such flexibility cannot justify abandoning fundamental safeguards of fairness.

“This is a matter where the reputation of attorneys was at stake. The decision of the committee will either have restored it or damaged it.

“It was incumbent on the committee to ensure that complainant stated the allegations in clear terms in the complaint.

“It mattered not that the complainant was not an attorney. The committee’s responsibility was to ask questions of the complainant if the allegations were not clear, and request that the complainant further particularise the claim. This was not turning him into an attorney as alluded to by the chairman of the committee,” Wilson wrote.

“It was the committee’s responsibility to ensure that the complaint before them clearly stated the allegations brought against the appellants. If it was not clear, then they would have to ask the complainant to provide the particulars rather than for the committee themselves to attempt to clarify the complaint.”

She added, “It is clear to us that the committee did not follow the established procedure in the hearing of these complaints brought against the appellants.

“This could possibly be due to the Committee’s attempt to assist an unrepresented complainant. Despite such a noble objective, the failure to follow the established procedures resulted in its decision being unsafe and in the procedure it adopted being in breach of the rules of natural justice…

“The committee may have some latitude to consider a complaint holistically and in context. However, it ought not to search the facts to identify some wrongdoing.” Beyond allowing the appeals, the court urged consideration of systemic reforms to assist unrepresented complainants.

Boodoosingh suggested that legal aid, volunteer attorneys or clinics, such as the Hugh Wooding Law School Legal Aid Clinic, could help complainants frame their complaints and present relevant evidence without compromising the adjudicative role of the committee.

“The committee has an important role in the regulation and maintenance of high standards of conduct in the legal profession,” the chief justice said. “This does not mean that the elements of a structured disciplinary hearing should be put to the side.”

The court also advised on providing a written decision when a finding of misconduct and a sanction is imposed.

“Where the decision of the committee imposes a finding of misconduct and a sanction of a reprimand, and that decision is less than two paragraphs with very little indication of what exactly the neglect or negligence in advising their clients was, the committee must lean in favour of providing a decision.

“This court notes that the sanction of a reprimand is not an insignificant punishment. The Registrar records such punishments pursuant to section 39(4) of the Act. It becomes part of the records of the registry and can have lasting professional consequences.

“A committee that feels assured, beyond a reasonable doubt that attorneys have breached its Code of Ethics must make their reasons clear for so doing, whether orally or in writing.”

Ramesh Lawrence Maharaj, SC, Kiel Taklalsingh, Stefan Ramkissoon and Nicholas Sant represented Rambally. Leon Kalicharan represented Karina Singh. Rajiv Rickhi, Ria Ramoutar, Shveta Parasram represented Sankar.

Commenting on the ruling, Taklalsingh said, “The decision is an important one for all professionals and in particular disciplinary bodies who may misuse their power of discipline.”