Within the past year, two attorneys-at-law practicising in the local courts have come under the microscope for their conduct.
One of the lawyers, Antiguan Kenroy Samuel was struck off the roll by the Registrar of the Supreme Court for not notifying the body that he had been disbarred from practising law in New York.
A third lawyer, Brenada Wardally-Beaumont has been ordered by Justice Gerhard Wallbank, a British judge sitting in the local high court to appear before a Tribunal of judges to investigate her for alleged misappropriation of funds belonging to her client.
Justice Wallbank’s ruling is that Wardally-Beaumont, a leading figure in the Seventh Day Adventist Church, be investigated with a view to determining whether she should be suspended from the profession or struck off the Roll as was done to Samuel, the Antiguan.
The female barrister was taken to court by her client, Joel Ganpot who hired Alban John to represent him in the case after he did not get over $300, 000.00 that came due to him following a divorce settlement.
The embattled Wardally-Beaumont retained Dr. Francis Alexis, QC, and Winnifred Duncan-Phillip to represent her before Justice Wallbank in a matter that was heard in December.
THE NEW TODAY has been able to obtain a copy of the judge’s ruling and has decided to publish an edited version of the 19-page document.
On 17th December 2014 the Court delivered a decision that conduct by the Defendant Attorney-at-Law (BRENDA WARDALLY-BEAUMONT) should be referred to a disciplinary tribunal comprising at least two Judges of the Supreme Court for a determination whether the Defendant should be suspended from practice or struck from the Roll for professional misconduct.
Misappropriation of funds by an Attorney-at-Law
This matter concerns alleged misappropriation by an Attorney-at-Law (Brenda Beaumont-Wardally) of funds belonging to a client, the Claimant (Joel Ganpot).
Misappropriation by an Attorney-at-Law of client funds breaches a number a fundamental principles that an Attorney-at-Law is bound to uphold. One of these is an obligation on such an Attorney-at-Law to protect a client’s money and assets.
This principle goes to the heart of a solicitor’s duty to act in the best interests of a client. Misappropriation of client funds can take many forms. All such forms are seriously egregious. They cause scandal, incalculable distress and anxiety to the immediate victims, and great harm to the administration of justice system, including to public confidence in the Courts and the legal profession.
Misappropriation of client funds is not the preserve of the thoroughly devious, which is why instances undermine the reputation of the legal profession so profoundly. They breach the tenet around which the entire civil administration of justice revolves, that client funds are sacrosanct.
Why misappropriation of client funds is so serious bears reflection. The first reason of course is the immediate harm it causes. Then there is the indirect damage that it does to the fabric of society as a whole. It constitutes a breach of contract, but is more than that.
It is a breach of trust, but is also more than that. Breaches of contract and trust can be, and unfortunately are, committed by tradesmen, businessmen and ordinary members of the public, but a solicitor is none of these. He or she practices pursuant to an oath that he or she professes upon admission.
That is why a solicitor is referred to as a professional, in the original and etymologically correct sense of the word. Misappropriation of client funds is a betrayal of the obligations freely assumed, for all time, when the solicitor takes the oath.
Betrayal of an oath is a form of perjury. Historically, even when oaths were made generally and extra-judicially and thus not punishable by common law or statute, breach of an oath was treated as aggravation for offences committed by officers.
Again, historically, and in the Anglo-Saxon legal context, King Alfred the Great in the 9th century A.D. accorded greater priority to the need to keep oaths than to prevent murder, treason and other heinous crimes, by making this the subject of the first statute in his Legal Code.
Whilst the punishment, as a penalty, for oath breaking was less than for those other offences, breach of oaths was visited with far more sophisticated but nonetheless dire consequences, which were simultaneously a punishment in terms of imprisonment, a removal of weapons privileges and property rights, a spiritual penance assigned by a Bishop, and measures calculated to rehabilitate and rebuild relationships ruptured thereby.
Failing all such measures, and as a last resort, the unrepentant oath traitor was to be cast out of civilised society: treated as an outlaw and excommunicated, and, should he be slain during pursuit, his body was to lie unransomed.
This package of measures was calculated to cure the temporal (ethical) and spiritual (moral) catastrophe of a broken oath. The oath was – and still is – a special kind of bond which binds society together.
Again, in the post Anglo-Saxon, English historical Common Law context, oaths gave rise to mutual legal obligations that were known as homage.
The slightest glance at our legal system demonstrates that oaths pervade it. They are the cornerstones of testimony and formal confirmation. Specially appointed officers commission them. Their form is carefully prescribed. They still are – or should be – the ethical guarantee that enables matters to be progressed with a high degree of confidence.
The Legal Profession Act, by Section 21 prescribes the current form of oath for Attorneys-at-Law, as follows:
“I, [name], do swear, that I will truly and honestly conduct myself in the practice of law as an attorney-at-law, according to the best of my knowledge, skill and ability, and in accordance with the laws of Grenada.”
The Courts’ treatment of misappropriation by its officers
Lest it be thought that the Court is more solicitous of the interests of an Attorney-at-Law than of the victims of his or her alleged professional misconduct, I must state categorically that that is not so.
Furthermore, lest it be thought that the Courts are slow to punish such wrongdoing by suspension or striking off, it should also be explained that that is an incomplete perception of what the Court tries to achieve.
As with the Solicitors Regulation Authority in the United Kingdom, the Court’s first priority is always to find a solution for the immediate victims. Often that is complex. In the absence of a centralised compensation scheme and a regulatory body to which Attorneys-at-Law must report financial difficulties in time to enable practices to close or merge with more financially viable firms (to which no shame attaches), such as has been established in the United Kingdom, part of the solution may sometimes be to permit an Attorney-at-Law to continue to practice, with or without conditions, such as supervision, where practical, particularly where the victims themselves do not press for suspension or striking off.
In no cases should this be taken to imply that the Court is content to permit an Attorney-at-Law who has shown him or herself by such misconduct to be of unsuitable character to continue in office. It is not.
By section 75 of the West Indies Associates States Supreme Court (Grenada) Act, Cap. 366, this Court has a summary jurisdiction to fine an officer of the Court for misappropriating funds. That aspect is, currently at least, not in issue, for a number of reasons which need not be rehearsed here.
The apparent facts of the present case
The pertinent facts in the present case appear as follows. It should be stressed that a disciplinary process has its own standard of proof to establish whether or not professional misconduct has occurred, and there has as yet been no finding of professional misconduct against the Defendant:
(a). In April 2005 the Defendant received a sum of $304,419.99 on behalf of one of her clients, Mr. Joel Ganpot, representing settlement sums in matrimonial proceedings between Mr. Ganpot and his ex-wife Mrs. Lester Ganpot.
(b). Despite demands made by or on behalf of Mr. Ganpot the Defendant failed to pay over the said sum.
(c). Mr. Ganpot sued the Defendant. Judgment in Default of Defence was entered against the Defendant in favour of Mr. Ganpot on 13th July 2007 in a total sum of $308,248.69.
(d). Despite Consent Orders subsequently being entered making provision for liquidation of the Judgment in installments, a substantial portion of the debt currently remains unpaid.
(e). The Defendant has accepted responsibility for having received moneys for Mr. Ganpot whilst acting on his behalf and for having failed to disburse them to Mr. Ganpot when required to do so.
(f). The Defendant has admitted that all cheques issued by her law firm were signed by her and that she must have used up Mr. Ganpot’s funds.
(g). The Defendant seeks to attribute the appropriation of Mr. Ganpot’s money to improper acts of an office administrator formerly employed by her and who has allegedly since left the jurisdiction.
(h). The Defendant appears in consequence thereof to have committed one or more acts of professional misconduct contrary to Clauses 2(2) and 81 of the Code of Ethics and Section 54(1) of the Legal Profession Act.
The Defendant has previously consented to, and subsequently satisfied, a judgment against her in Claim No. GDAHCV2002/0101, Cecilia Yvonne James vs Brenda Wardally-Beaumont, wherein it was claimed that the Defendant misappropriated a sum in excess of $100,000 whilst acting for the Claimant in the sale of a property.
I pause here to remark that the Defendant’s alleged mitigation argument in the present case, that the misappropriation of Mr. Ganpot’s money was the doing of a former employee, is called into question by this earlier event, in that one may well ask why it is that the Defendant appears not to have taken appropriate care to prevent a repetition of a similar incident, particularly as she was for all intents and purposes a sole practitioner and thus must have had an appreciation of her firm’s fee income before signing off on spending.
The apparent repetition suggests, rather, a longer running and more endemic problem in the financial management of the Defendant’s practice than she is currently portraying. Disclosure of the Defendant’s dealings with the client account should demonstrate the whole picture. Appropriate measures can be put in place to preserve her clients’ confidentiality.
If the Defendant has nothing to hide, and if the primary responsibility for the shortfall in the present case lies with another, as the Defendant contends, the Defendant should be keen to give full disclosure.
On 19th March 2014 Mr. Ganpot applied for an order for committal of the Defendant for contempt of court arising from breach of an Order made herein on 6th February 2013 and for an Order that the conduct of the Defendant relating to this matter be considered by two Judges of the Supreme Court for the purpose of determining whether the Defendant should be suspended from practicing as a Barrister and Solicitor or removed from the Court’s Roll, pursuant to section 82 of the West Indies Associated States Supreme Court (Grenada) Act, Cap. 336 of the Continuous Revised Edition of the Laws of Grenada.
The Defendant has filed evidence in response to this application, and has also applied to vary the terms of the applicable payment order, on 5th December 2014, on grounds that her financial position is precariously insufficient.
Upon the Claimant’s Application coming on for hearing on 13th November 2014, the Court ordered that the act by the Defendant, her servant or agent of apparently misappropriating client funds is to be referred to the General Legal Council pursuant to section 34(3) of the Legal Profession Act, No. 25 of 2011, as amended, for further investigation and, if appropriate, action.
This has now been done. Moreover, without prejudice to such a referral, the Court directed the parties to file written submissions on the question whether the Court has jurisdiction to determine an application by a Claimant for an Attorney-at-Law to be struck off from the Roll, directly under the West Indies Associated States Supreme Court (Grenada) Act or otherwise.
This question arises because at the time of hearing of Mr. Ganpot’s Application (and possibly now as well) the General Legal Council was, so the Court understands, not fully constituted and/or not operational.
Material Statutory Provisions
Section 81(1) of the West Indies Associated States Supreme Court (Grenada) Act, Cap. 336 provides:
“Every person practicing as a solicitor, and whose name is enrolled as a barrister or solicitor, shall be deemed to be an officer of the Court.”
This is repeated, by what appears to be legislative duplication and not repeal and replacement, by section 23(b) of the Legal Profession Act.
Section 82 of the West Indies Associated States Supreme Court (Grenada) Act, Cap 336, provides:
“Any two Judges of the High Court may, for reasonable cause, suspend any barrister or solicitor from practising in Grenada during any specified period, or may order his or her name to be struck-off the Court Roll.”
Section 33(1) of the Legal Profession Act provides:
“The rules contained in the Code of Ethics set out in Schedule III shall regulate the professional practice, etiquette, conduct and discipline of an attorney-at-law”; and Section 33(2) of the Legal Profession Act provides:
“A breach of the rules in – a. Part A of the Code of Ethics may constitute professional misconduct;
Section 33(5) of the Legal Profession Act provides:
“An attorney-at-law whose name is entered on the Roll shall be deemed to have notice of the provisions of the Code of Ethics”.
The Legal Profession Code of Ethics, at Schedule III of the Legal Profession Act provides in Part A, Clause 2(1): “An attorney-at-law shall uphold, at all times, the standards set out in the Code of Ethics”.
The Legal Profession Code of Ethics, at Schedule III of the Legal Profession Act provides in Part A, Clause 2(2): “An attorney-at-law shall maintain his integrity and the honour and dignity of the legal profession and of his own standing as a member of it… and shall refrain from conduct which is detrimental to the profession, or which may tend to discredit it”.
The Legal Profession Code of Ethics, at Schedule III of the Legal Profession Act provides in Part B, Clause 81: “In pecuniary matters, an attorney-at-law shall be most punctual and diligent; and shall never mingle funds of others with his own, and he shall at all times be able to refund money he holds for others”.
The Legal Profession Code of Ethics, at Schedule III of the Legal Profession Act provides in Part B, Clause 84: “A breach by an attorney-at-law of any of the provisions contained in this Part, shall constitute professional misconduct, and an attorney-at-law who commits such a breach, is liable to any of the penalties which the Council, the Court, or both are empowered to impose”.
Section 54(1) of the Legal Profession Act provides:
“All monies received for, or on behalf of a client, by an attorney-at-law, shall be held in trust for that client, to be paid to the client, or as the client may direct.”
The Legal Profession Act and Code of Ethics provide no exceptions to the obligations contained therein.
Section 35 of the Legal Profession Act provides a detailed procedure for making a complaint before the General Legal Council. Its essence is to ensure procedural fairness, especially to the Attorney-at-Law who may be found liable to discipline, as well as a sufficient degree of privacy to enable allegations of misconduct to be thoroughly ventilated, but with the Council’s findings being pronounced in public.
Pursuant to section 37(2) of the Legal Profession Act, the General Legal Council does not have the power to remove a barrister or solicitor from the Roll.
That is a power reserved by the Legal Profession Act, by section 37(2)(a) and (3) to the Supreme Court, to be exercised “in accordance with section 82 of the West Indies Associated States Supreme Court (Grenada) Act, Chapter 336” by any two judges of the Supreme Court.
By section 37(2)(b) the General Legal Council has power to suspend a practicing certificate of an Attorney-at-Law.
Section 37(3) provides:
“Any two judges of the Supreme Court may, upon hearing an application made by the Council under this Part, order the suspension of an attorney-at-law or have the name of an attorney-at-law struck off the Roll.”
The Order of the Court:
(1). The whole conduct of the Defendant relating to this matter shall be considered by a disciplinary tribunal comprising at least two judges of the Supreme Court for the purpose of determining whether the Defendant shall be suspended from practicing for a specified period or be struck off from the Roll, pursuant to section 82 of the West Indies Associated States Supreme Court (Grenada) Act, Cap 336;
(2). There shall be established such a disciplinary tribunal by the Registrar, in consultation with the Judicial and Legal Services Commission;
(3). A notice of first hearing of the matter before the disciplinary tribunal shall be given to the Defendant and the Claimant via their respective solicitors of record in this Claim.
(4). At such first hearing the disciplinary tribunal shall give directions as to the further hearing of the matter, including as to granting any other interested parties an opportunity to be heard;
(5). The disciplinary tribunal shall take into account all the circumstances of the Defendant’s conduct, such as it may be found by the disciplinary tribunal, including whether the said conduct concerns a single event, or a repetition of previous conduct, and the degree of responsibility that ought properly be ascribed to the Defendant;
(6). The disciplinary tribunal shall be entitled to instruct Counsel to act as amicus to the tribunal, the reasonable cost thereof to be met in the first instance by the public purse of Grenada;
(7). The Defendant shall bear the Claimant’s cost of this application in the sum of $5,000 to be paid to the Claimant by the end of February 2015;
(8). The date of this decision, for the purposes of any application for leave to appeal, shall be the date the written reasons are delivered.
Finally, I thank both sides’ Learned Counsel for their assistance. A particular commendation must go to the Claimant’s Attorneys-at-Law, for the high standard of Mr. Alban John’s presentation and for the thoroughness of his and Ms. Thandiwe Lyle’s research and preparation.