This is a case of two lawyers being brought before the Supreme Court. (Laurentius Van Kessel, through his Attorney Jayawickrama v. Shobha Samaratunga and another, Attorneys At Law – SLR – 85, Vol 2 of 2002 [2001] LKSC 4; (2002) 2 Sri LR 85 (June 20, 2001).)
The legal procedure with regard to matters of malpractice by lawyers is to initially, as specified in the Rules of Court, issue a Rule — legal terminology for a ‘charge’ against an Attorney — on the lawyers concerned, and then hear the case against them. If the lawyers concerned are found to have flouted professional ethics or acted in a manner that does not uphold the dignity of the profession, the Rule is affirmed and the Attorneys are dis-enrolled and debarred from practicing, either for a specified period of time or permanently, depending on the judgement of Court.
In this case, a relatively junior lawyer who was professionally speaking almost totally at the mercy of her senior, was the direct recipient of money from a German national who wanted to purchase property in Sri Lanka because he liked the country, and probably wanted to retire here, when the time was right to make that move.
The Supreme Court judgement states:
“The complainant, Laurentius Van Kessel, a German national and an Engineer by profession, was working in the United Arab Emirates in 1990. There he had met one Indralal Perera, a Sri Lankan, who was working with him in Abu Dhabi. By 1990, Van Kessel had worked for a period of over 4 1/2 years in Abu Dhabi and had known Indralal Perera throughout that period. The complainant developed an interest in Sri Lanka and visited the country for the first time on 14. 02. 1990. He left Sri Lanka on 23. 02. 1990, but returned again for a brief holiday with his wife on 22. 12. 1990. The purpose of the second visit was two-fold: firstly, to spend his annual vacation in a country he liked most and secondly to ‘look for land’ with a view to purchasing.”
A half an acre plot was identified in Dodanduwa, and the price quoted was Rs. 725,000, though it later transpired that was a mark up by the 2nd Respondent and the actual price was 5,25,000. The land which had been selected in this way — through a contact of a contact — was located through the efforts of the 1st and 2nd respondents, the former being the junior lawyer, and the latter being a longtime practitioner of the said senior.
The two persons may have Committed acts that contravened 42 (2) of the Judicature Act, No 2 of 1978, and they were asked by the Supreme Court why action should not be taken by the Supreme Court against them in this regard. This was after the German national had lodged a complaint against the lawyers concerned in the Supreme Court. But it was the opinion of Court that the two respondents could not give any satisfactory explanation with regard to the matter, and hence a Rule was issued that would allow for their suspension from the Roll of Attorneys or other appropriate strictures.
The judgement details the Rule issued against the respondents in the following manner:
“(a) you did receive money from the complainant for the purchase of two properties and some antique furniture; and
(b) you did purchase only one property with the said money; and
(c) you have failed and neglected to render a true and proper account in respect of a sum of Rs. 2,580,676/90 remitted by the complainant; and
(d) you have thereby caused pecuniary loss to the complainant.”
The events unfolded when Rs. 2,500,000, a sum greater than the quoted price for two lands identified to be sold to the complainant, was withdrawn by the 1st respondent and handed over to the 2nd respondent. The withdrawal was at the request of their client, the aforementioned German. The 2nd respondent lawyer of course admitted he received the money via the 1st respondent, but submitted he gave the cash to a Chinese national on the understanding that the money be returned. He submitted also that he went to China to track down the Chinese national to recover the money, but to no avail.
The owner of the second land concerned gave evidence in Court to the effect that he did not get the money that the 2nd respondent had received from the complainant, but had received a sum of Rs.100,000 a fraction of the quoted purchase price of Rs.525,000. Later the complainant German national had paid the balance sum of Rs. 450,000, that was due for the land to a certain Rajakaruna, the owner, which included an additional sum of Rs. 25,000 for the delay in paying the full purchase price. The 2nd Respondent had also misused a sum of money given by the German national to purchase some antique Sri Lankan furniture.
The Supreme Court in judgement reproduces a letter written by the complainant (who is represented in Court by his lawyer) to the 2nd respondent Attorney-at-Law who is the senior partner in the legal partnership between the 1st and 2nd respondent.
The following is the excerpt:
“… I decided to check into the matter myself. As a result I found out that you personally requested from Miss Shoba to handover the money transferred by me, with the argument that you wanted to take care of it personally . . . Until now Miss Shoba solely had to bear all the problems in connection with the contract she has with me.
I hope that it is not your style to misuse the loyalty of your employer/partner and that you will not ignore: one cannot go on with the normal way of life, while destroying the name and future of another family.” [emphasis added].
In a partially happy ending to the story, at least for the Attorneys concerned, the first respondent, the Junior Attorney, was given the benefit of the doubt by Court as it was established that she was at the mercy of her senior. More accurately, the Court was of the opinion the charges against her haven’t been proved and that there isn’t sufficient material to enforce the Rule on her, ensuring as a consequence that she will not face dis-enrollment.
The Supreme Court judgement states, referring to the 2nd respondent, the senior partner… :
“He had visited China to meet the couple unsuccessfully. The complainant informed the Court that he has his Passport in his possession to show that he had visited China. However, he had not thought it necessary to produce the entries made, if any, in his diary relating to the transactions. No records, pertaining to any of the transactions, were produced. He specifically admitted that the money which was entrusted to him by the complainant for the purposes specified by the complainant was utilized by him for a different purpose.”
In effect, Court states, the explanation with regard to a Chinese-borrower was a calculated excuse to conceal the facts. The lawyer concerned had not made any entries in his diary about the funds received, and any transactions done thereafter, and if such were made he would have produced them in Court. The cavalier attitude of receiving a large amount of funds without making any relevant note or diary entry about them seemed to indicate intent to defraud. To say the very least, Attorneys are supposed to deal scrupulously with funds received from clients or other parties.
The judgement states:
“The principles that should guide this Court in determining the sentence imposed on an Attomey-at-Law have been discussed in several decisions of this Court. In Re Fernando Basnayake, CJ. was of the view that:
“The power to remove or suspend a proctor from his office is one that is meant to be exercised for the protection of the profession and the public and for the purpose of maintaining a high code of conduct among those whom this Court holds out as its officers to whom the public may entrust their affairs with confidence. If a proctor is adequately to perform the functions of his office and serve the interests of his clients, he should be able to command the confidence and respect of Judges, of his fellow practitioners and of his clients.
For the reasons aforesaid, I find the 2nd respondent guilty of deceit and malpractice under section 42 of the Judicature Act. The Rule relating to the 2nd respondent is, therefore, made absolute.”
Order was made directing that the 2nd respondent be removed from the office of Attorney-at-Law of the Supreme Court, and his name be struck off the Roll of Attorneys-at-Law. The Registrar of the Court was asked to take steps accordingly.
To reiterate, the Rule against 2nd respondent was made absolute and he was disenrolled. The first Respondent on the other hand, was found innocent of the charges made against her, and the Rule against her was dismissed.
