TOPICS FOR EXAMINATION

THE RETAINER...............................................................................................................3
EFFECT OF TERMINATION OF THE RETAINER – LIENS...........................................7
RETAINER BY DIFFERENT PERSONS.........................................................................8
FORMER CLIENT CONFLICTS....................................................................................10
CONFLICT OF INTEREST BETWEEN ATTORNEY AND CLIENT..............................11
DISABILITY OF THE ATTORNEY.................................................................................13
SALE TO AND FROM THE CLIENT.............................................................................14
GIFTS BY THE CLIENT TO THE ATTORNEY..............................................................15
BEQUESTS AND DEVISES BY THE CLIENT TO THE ATTORNEY...........................15
AUTHORITY OF ATTORNEY WHEN RETAINED........................................................16
ATTORNEY’S LIABILITIES & OBLIGATIONS TO THE CLIENT..................................18
DUTY OF SKILL & CARE TO THIRD PARTIES...........................................................19
THE LIABILITY OF AN ATTORNEY ACTING AS AN ADVOCATE TO THIS CLIENT. 20
PRIVILEGE....................................................................................................................21
PROFESSIONAL DISCIPLINE......................................................................................23
THE NATURE OF THE MISCONDUCT ALLEGED.......................................................24
THE HEARING..............................................................................................................25
THE OBJECTS OF PUNISHMENT IN DISCIPLINARY CASES...................................26
CONTEMPT OF COURT...............................................................................................26
WHAT DOES NOT AMOUNT TO CONTEMPT.............................................................26
WHAT AMOUNTS TO CONTEMPT..............................................................................28
UNDERTAKINGS..........................................................................................................29
Disciplinary Proceedings................................................................................................31
ATTORNEY’S DUTIES TO THE COURT......................................................................31
Duties of Prosecuting Counsel......................................................................................33
DEPARTURES FROM THE EXPECTED STANDARD OF CONDUCT........................34
DUTIES OF DEFENCE COUNSEL IN CRIMINAL CASES...........................................35

1
 DUTIES OF DEFENCE COUNSEL IN CRIMINAL CASES...........................................36
COUNSEL’S DUTY IN RESPECT OF THE SUMMING UP..........................................36
THE ROLE OF THE TRIAL JUDGE..............................................................................36
Liability for costs............................................................................................................37
Remuneration:...............................................................................................................38
the attorney has been convicted by any court (including but not limited to foreign
SEE THE FOLLOWING CANONS courts) (2) the attorney although not prosecuted , the disciplinary committee is
satisfied of the facts constituting the offence (3) although the attorney has been
Canon I prosecuted and acquitted by reason of a technical defence or is convicted and the
conviction is quashed by reason of some technical defence.
- (b): an attorney shall at all times maintain the dignity and honour of the profession
and shall abstain from behaviour which may tend to discredit the profession. Canon IV

Canon II - (f): the fees that an attorney may charge shall be fair and reasonable and in
determining the fairness and reasonableness of a fee any of the following factors
- (d): an attorney may advertise in connection with the attorney’s practice subject to may be taken into account. (1) whether the fee is fixed or contingent (2) the
the conditions set out CANON II(d) and those that follow. Thus an attorney may experience, reputation and ability of the attorney (3) the nature and length of the
advertise as long as such advertising is not false in any particular, is not misleading professional relationship (4) the amount if any (5) the fee customarily charged in the
or deceptive, vulgar or sensational and does not imply superiority over other locality for the same service (6) the time limitations imposed by the client and/or the
attorneys. Also such advertising shall not contain any testimonials or endorsements circumstances (7) the time and labour involved, novelty and skill required etc (8) the
re the attorney, nor refer to the fact that the attorney has held judicial office, nor claim likelihood that acceptance of the particular employment will preclude other
that the attorney is an expert, specialist etc in any area of practice. employment by the attorney (9) the prescribed scale of fees.
- (k): an attorney shall not advertise in connection with his/her practice in the field of - (j): except with the specific approval of his client, given after full disclosure, an
personal injury claims or fatal accidents unless such advertising is in the nature of attorney shall not act in any manner in which his professional duties and his personal
limited advertising. Limited advertising means advertising whether in printed or interests conflict or are likely to conflict.
electronic form in which there appears nothing more than the attorney’s name, firm, - (n): an attorney may at any time withdraw from employment where:
telephone and fax numbers and the fact that the attorney will accept instructions in (1) the client fails, refuses or neglects to carry out an agreement with or obligation to his
personal injury and fatal accident matters. attorney re fees payable by the client
Canon III (2) where the client freely assents to the termination of his employment
(3) where his inability to work with his co-attorneys indicates that the best interest of his
- (a): An attorney though not under an obligation to act on behalf of every person who client will be served by his withdrawal
wishes to become his client, shall not lightly decline a proffered retainer. (4) where by reason of his physical/mental condition or other good and compelling
- (e): An attorney except for good reason shall not refuse his/her services in capital reason it is difficult for him to carry out his employment effectively.
offences. (5) Where any of the provisions of Canon (j), (k), or (m) apply.
- (h): An attorney engaged in the prosecution of an accused person shall not withhold
facts or secrete witness which tend to establish the guilt or innocence of an accused - (o): an attorney who withdraws from employment by virtue of any of the provisions of
person and has a primary duty to see that justice is done. Canon (n) shall not do so until he has taken reasonable steps to avoid foreseeable
- (k): where an attorney commits a criminal offence which in the opinion of the prejudice to the rights or position of his client and thus ought to give due notice, allow
disciplinary committee is of a nature likely to bring the profession into disrepute such time for the employment of another attorney, deliver to the client all documents and
commission of the offence shall constitute misconduct in a professional respect if: (1) property to which he is entitled, complying with all applicable laws, rules etc and
2
 where appropriate obtaining the permission of the court hearing the matter, where - (m): an attorney shall not knowingly use perjured testimony or false evidence or
the matter has commenced. participate in the creation or use of evidence which he knows to be false
- (p): an attorney who withdraws from employment in accordance with Canon IV (o) - (n): an attorney shall not counsel or assist his client or witness in conduct that the
shall refund promptly such part of the fees if any paid in advance as may be fair and attorney knows to be illegal or fraudulent if he is satisfied that his client has in the
reasonable having regard to all the circumstances. course of the particular representation perpetrated a fraud upon a person or tribunal
- (q): an attorney shall withdraw forthwith from employment or from a matter pending he shall promptly call upon him to rectify same
before a Tribunal where: - (o): an attorney shall not knowingly make a false statement of law or fact
(1) the client insists upon his representing a claim or defence that he cannot
conscientiously advance Canon VI
(2) the client seeks to pursue a course of conduct that is illegal or will deliberately
deceive the court - (e): where an attorney has been sent money, documents etc by another attorney
(3) where the client has perpetrated a fraud upon a person or tribunal and upon request which at the time of sending are expressed to be sent only on the basis that the
of the attorney has refused or is unable to rectify same Attorney to whom they are sent will receive them on his undertaking to do or refrain
(4) where his continued employment will involve him in a violation of a rule of law or from doing some act the receiving attorney shall forthwith return such things if he is
disciplinary rule unable to accept them on such undertaking but otherwise must comply with the
(5) where the client by his conduct renders it unreasonably difficult for the attorney to undertaking.
carry out his employment as such effectively or in accordance with the Canons of - (h): an attorney shall not accept instructions to act in court proceedings in which to
Professional Ethics his knowledge the client has been previously represented by another attorney unless
(6) where for any good or compelling reason it is difficult for the attorney to carry out his he first notifies the other attorney of the change; provided that an attorney shall be
employment effectively. deemed to have notified the other attorney if he made reasonable efforts to notify
him.
- (r): an attorney shall deal with his clients business with all due expedition and shall - (j): an attorney who instructs another attorney to act on behalf of his client unless
whenever reasonably so required by the client provide him with all information as to otherwise agreed shall pay the proper fee of that attorney whether or not he has
the progress of the client’s business with due expedition. received payment from his client.
- (s): in the performance of his duties an attorney shall not act with inexcusable or
deplorable negligence or neglect. Canon VII
- (t): an attorney shall not knowingly reveal a confidence or secret of his client or use a - (a): an attorney shall comply with the rules of the G.L.C. relating to the keeping in
confidence or secret of his client to the client’s disadvantage of his own advantage or separate accounts the funds of himself and those of his clients.
to the advantage of any person unless it is done with the consent of the client after
full disclosure. Canon VIII
- (d): Breach by an attorney of any of the Canons listed above shall constitute
Canon V misconduct in a professional respect and an attorney who commits such breach shall
be subject to any of the orders contained in Section 12(4) of the Legal Profession
- (a): an attorney shall maintain a respectful attitude towards the court and shall not Act.
engage in any undignified or discourteous conduct which is degrading to the court
- (f): an attorney shall not accept private employment in a matter upon the merits of
which he previously acted in a judicial capacity. THE RETAINER
- (g): A Supreme Court Judge/Court of Appeal Judge shall not appear as an attorney
at law in any of the courts of the island of Jamaica The retainer is a contract between the lawyer and client, whereby in return for a client’s offer
- (h): an attorney shall not give, lend or promise anything of value to a judge, juror or of employment, an attorney agrees to render the legal services specified. A distinction must
official of a tribunal before which there is a pending matter in which he is engaged. be made between the retainer and advance payment of fees. A retainer is however in the
nature of a contractual relationship between client and attorney. The retainer is the
3
foundation of the attorney/client relationship and comes into existence by the attorney agreement prescribed by the 1985 byelaw, and that the Names were free to pursue their
agreeing to render legal services to the client upon agreed terms. The relationship thereby remedy either in contract or in tort. Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964]
created is essentially contractual though the attorney on the facts of the particular case may A.C. 465, H.L. (E.) and Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 348
be found to owe a duty in tort to the client as well. The following obligations flow from the applied. Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80, considered].
retainer and are imposed on the attorney:
1) those expressly agreed upon when the retainer is created or subsequently imposed The caution sounded by the Privy Council in Tai Hing Cotton Mill Ltd [1985] 2 All E.R. 947
by mutual agreement. per Lord Scarman [Per curiam: There is no advantage to the law's development in
2) obligations which the law will imply in the circumstances searching for a liability in tort where the parties are in a contractual relationship. Though it is
3) obligations expressly imposed by law as being applicable to a particular retainer(the possible to conduct an analysis of the rights and duties inherent in some contractual
law imposes a duty of confidence, fiduciary relationship, duty of care etc.) relationships including that of banker and customer either as a matter of contract or as a
It must also be borne in mind that there is no general relationship of lawyer/client of a matter of tort it is correct in principle and necessary for the avoidance of confusion in the law
standing nature and each piece of work undertaken constitutes a separate retainer. Per to adhere to the contractual analysis. Parties' mutual obligations in tort cannot be any
James LJ in Saffron Walden Benefit Building Society v Rayner: “ A man has no more a greater than those to be found expressly or by necessary implication in their contract] at
solicitor than he has an accountant or a baker or a butcher. A person is a man’s accountant page 957 “where the parties are in a contractual relationship care ought to be taken not to
or baker or butcher when that man chooses to employ or deal with him and the solicitor is seek to extend beyond the bounds of that contract by some wider duty of care.”
his solicitor when he chooses to employ him and in the matter in which he is so employed.
Beyond that the relationship of solicitorship does not extend.” The attorney’s power to bind his client once retained will generally flow from his actual
It was once thought that an attorney owed no duty to his client beyond that imposed authority. It should nevertheless be noted that an attorney has an implied authority once
by the general law of contract. In Groom v Crocker the Court held [that the mutual rights retained in litigation to enter into discussions with a view to compromising litigation on his
and duties of a solicitor and his client are regulated by the contract of employment, and that client’s behalf. An attorney is seised of this authority without any actual authority for the
the appellants were not liable to the respondent in tort] which is authority for the proposition client being implied. If an attorney enters into a compromise in terms contrary to his express
that an attorney does not owe simultaneous duties in tort in addition to duties in contract. authority it may lay him open to an action for breach of duty on the part of his client but if it is
within his apparent/ostensible authority to enter into the compromise then it may bind the
However, in Midland Bank v Hett, Stubbs and Kemp Mr. Justice Oliver held [that a duty of client notwithstanding that it was done without the client’s actual authority.
care was imposed upon the defendant firm of solicitors by reason of the relationship of
solicitor and client existing between the parties, and that the defendants were therefore In Waugh v Clifford & Sons [1982] 1 All E.R. 1095 the Court of Appeal held that [the
liable in tort, independently of any liability in contract, for their negligence in omitting to solicitor retained in an action had ostensible authority as between himself and the opposing
register the option before a third party had acquired an adverse interest in the farm; and litigant to compromise the suit provided that the compromise did not involve matters
that, since the cause of action in tort did not arise until the damage occurred on August 17, collateral to the action; that matter was not collateral to the action unless it involved
1967, a date within six years before the date of the writ, the plaintiffs' cause of action was extraneous subject matter, and that a compromise did not involve collateral matter merely
not statute-barred under the Limitation Act 1939] the court held that there was no rule of law because it contained terms which the court could not have ordered by way of judgment in
which confined a solicitor’s duty to his client under his retainer to a contractual duty alone the action; that, since the subject matter of the dispute between the plaintiffs and the
nor was there any rule of law which precluded a claim in tort for breach of duty to use company was the performance of the 1977 agreements to sell and convey the sites and
reasonable skill and care merely because there was a parallel contractual duty of care. In build the houses, a compromise which involved handing back the houses in return for a
that case Oliver J based himself on the principles laid down in Hedley Byrne v Heller which price reflecting their current value in proper condition was a compromise which went to the
established that a special relationship between parties even in a voluntary non-contractual heart of the bargain the plaintiffs had made and was within the ostensible authority of the
setting could give rise to a duty of care. company's solicitors]

In Henderson v Merritt Syndicates [1994] 3 All E.R. 506 the House of Lords held that a Formalities
duty of care was owed by managing agents in tort both to direct Names and indirect Names, There is generally no requirement for the contract of retainer to be in writing or orally.
and that the existence of such a duty of care was not excluded by virtue of the relevant Section 21 (1) of the Legal Profession Act provides that an attorney may agree in writing for
contractual regime either under the pre-1985 agreements, or under the terms of the the payment of a particular fee. It is always advisable for an attorney to have the contract of

4
retainer reduced to writing. Generally the form of writing is immaterial provided there is a authority. In the case of Re Petition by Shafi Janali (1974) 21 W.I.R. 172 the court
note or memorandum signed by the party to be charged or some other person lawfully (Guyana) held that the filing of the petition unaccompanied by an authority to solicitor did not
authorized to do on his behalf. In Griffiths v Evans Lord Denning was of the view that [on make the proceedings a nullity; such proceedings were cured by the subsequent filing of the
the question of retainer, I would observe that where there is a difference between a solicitor authority.
and his client upon it, the courts have said, for the last 100 years or more, that the word of
the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be Duration of the retainer
given to it The reason is plain. It is because the client is ignorant and the solicitor is, or The duration of the retainer is traditionally said to depend upon whether that contract is an
should be, learned. If the solicitor does not take the precaution of getting a written retainer, entire or non-entire contract.
he has only himself to thank for being at variance with his client over it and must take the
consequences.] Entire Contract
Re having the retainer in writing, it is particularly important that the terms of the lawyer’s The general rule is that once an attorney accepts a retainer to carry on or defend a suit or to
engagement in litigation be in writing where it will be necessary to inform clients as to rules do some other thing/business for the client he is engaged on an entire contract with the
as to costs in particular that if he loses, he will be liable for the costs of the other side and in effect that he is generally not entitled in the absence of a periodical fee agreement to sue for
criminal cases of the right to make an unworn statement and of the possible consequence his fees until the assignment is complete. The attorney will however be entitled to request
that could flow from exercising that right. reasonable sums required for the purpose of carrying on the proceedings or business and
these will generally be the funds which are required to take the business for which the
In commencing litigation, one should always bear in mind the need to have formal authority attorney has been engaged to the next step. Thus for example, the attorney can request
from your client because an attorney who acts without authority will be held to have reasonable sums for stamping, filing costs and the costs of service, research and
impliedly warranted that he had such authority and may therefore become personally liable photocopying. Not only is the attorney not generally entitled in those circumstances until the
to pay the other side’s costs of the action. In Yonge v Toynbee [1910] 1 K.B. 215 the Court job is complete to payment of fees, but he is also not entitled to abandon the matter at any
of Appeal held that where an authority given to an agent has, without his knowledge, been stage as he thinks fit and thereupon insist upon payment of fees up to that stage. This is a
determined by the death or lunacy of the principal, and, subsequently, the agent has, in the contractual as well as ethical obligation.
belief that he was acting in pursuance thereof, made a contract or transacted some
business, with another person, representing that, in so doing, he was acting on behalf of the In Underwood & Piper v Lewis [1894] 2 Q.B. 306 the Court of Appeal held that the
principal, the agent is liable, as having impliedly warranted the existence of the authority contract of a solicitor who accepts a retainer in a common law action is, in the absence of
which he assumed to exercise, to that other person, in respect of damage occasioned to him agreement to the contrary, an entire contract to conduct the case of the client until the action
by reason of the non-existence of that authority. Such an attorney exposes himself to is finished. He is not entitled, therefore, without good cause, on giving reasonable notice to
personal liability. his client, to decline to act further in the action for him, and thereupon sue for his costs in
respect of the previous conduct of the client's case. Lord Esher M.R. at page 310 of the
Ratification judgment stated that: “When a man goes to a solicitor and instructs him for the purpose of
Where litigation has been commenced by the lawyer without the client’s express authority it bringing or defending such an action, he does not mean to employ the solicitor to take one
may be subsequently ratified by the client in accordance with the ordinary principles of step, and then give him fresh instructions to take another step, and so on; he instructs the
agency. In Danish Mercantile Co v Beaumont [1951] 1 All E.R. 925 the Court of Appeal solicitor as a skilled person to act for him in the action, to take all the necessary steps in it,
held that where proceedings are started in the name of a plaintiff without proper authority, so and to carry it on to the end. If the meaning of the retainer is that the solicitor is to carry on
long as the matter rests there, the action is not properly constituted. In that sense it is a the action to the end, it necessarily follows that the contract of the solicitor is an entire
nullity and can be stayed at any time, provided that the aggrieved defendant does not contract - that is, a contract to take all the steps which are necessary to bring the action to a
unduly delay his application. It is, however, open at any time to the purported plaintiff to conclusion. When it is shewn that there were no special terms, but only the ordinary retainer
ratify the act of the solicitor who started the action, and to adopt the proceedings. When that for the purposes of the action, the implication I have mentioned is that which every
has been done, then, in accordance with the ordinary law of principal and agent, and in reasonable person would make, and therefore the implication which the law makes in such a
accordance with the ordinary doctrine of ratification, the defect in the proceedings as case.”
ordinary constituted is cured, and it is no longer open to the defendant to object that the
proceedings then ratified and adopted were in the first instance brought without proper

5
The older authorities make it clear that the rule as to entire contracts developed primarily in is held that the retainer was a general one to get the client generally out of her difficulties. In
relation to common law actions which: “did not occupy a very long time and were such a case there is no question of the solicitor being bound to prosecute the matter to a
comparatively simple matters.” Per Jessel M.R. in Re Hall & Barker (1878) 9 Ch. 538 @ conclusion before being able to recover his costs. He may upon reasonable notice decline
543. In actions in equity it has always been accepted that the length & complexity of such to proceed further with the matter unless his costs are paid; in other words, he may
suits could justify the recognition of natural breaks in litigation between various stages of the discharge himself from his retainer and sue for all his costs. The Court of Appeal affirmed
proceedings which would justify the attorney rendering a bill or more than one bill before the the earlier decision of Mr. Justice Goddard as he then was.
completion of the litigation. In Re Romer & Haslam [1893] 2 Q.B. 286 the Court of Appeal
held that where a solicitor is retained to conduct litigation, other than an ordinary action at
common law, which may extend over a considerable period of time, and in which breaks In J.H. Milner & Sons v Percy Bilton [1966] 2 All E.R. 894 the plaintiff solicitors were
may occur of such a kind as to be equivalent to the conclusion of a definite and distinct part retained to act for a construction company in relation to the entire legal work incidental to a
of the proceedings, he may deliver to his client a bill of costs for business done up to the particular property. The plaintiff solicitors did separate items of work and rendered bill for
occurrence of any such breaks in the litigation, and demand payment. each bit of work done, which bills were duly paid. The defendant company wrote to the
plaintiffs indicating that they no longer wished the plaintiffs to act for them. The plaintiffs
It should be borne in mind that as long as the attorney’s name appears on record in the suit alleged that they were retained on an entire contract basis but Mr. Justice Fenton Atkinson
the attorney has an ethical and contractual duty to appear even if not ‘put in funds’. held that if there was an agreement to retain at all, it was not an entire contract and that the
defendants were entitled to terminate such retainer at any time on giving notice to that effect
to the plaintiffs; and that the defendants by their letter of August 31, 1962, alternatively by
their letter of November 5, 1962, did so terminate the contract.
The Non-entire Contract
Where on the other hand the attorney is engaged generally by the client to prosecute or deal Termination
with a number of matters then the retainer constitutes a non-entire contract which would The manner of termination of the contract by the attorney will depend on whether it is an
entitle the attorney to be paid from time to time as each piece of work is concluded and the entire or non-entire contract. An entire contract can only be terminated without breach
client receives the benefit of it. As with all contracts, it is the intention of the parties that is before completion for good reason and upon sufficient notice. Examples of good reasons
paramount and whenever it appears to have been clearly within the contemplation of the are found in Underwood & Piper v Lewis and would include:
attorney and client that bills would be rendered and paid from time to time as the various 1) the failure by the client to fund disbursements to be made
pieces of work proceed the court will give effect to that contract as a non-entire retainer. 2) the client insisting on the attorney taking some steps which the attorney knows to
the unlawful or dishonourable
In Warmingtons v McMurray [1937] 1 All E.R. 562 the Court of Appeal held that in a case
where the defendant had retained the plaintiffs to prosecute all such matters as might be This list is not exhaustive and whenever an attorney is prevented or hindered by the client
necessary to get her out of her difficulties and the plaintiffs after having prosecuted several from acting in a professional manner then the attorney is entitled to terminate the contract.
such matters delivered a bill of costs and the defendant intimated that she was unable to Smith L.J. @ pg 314 in Underwood & Piper v Lewis said that: “Therefore prima facie the
pay anything more than the costs of the arbitration proceedings in which she was engaged. contract of the solicitor, when he accepts a retainer in a common law action, is an entire
The plaintiffs then discharged themselves from their retainer, the C.A. held that this was not contract to carry on the action till it is finished, and he cannot sue for costs before the action
a case of a solicitor retained to prosecute an action and no question of entire contract arose. is at an end. On the other hand, it is clear that the solicitor may be placed in such a position
The retainer here was one to prosecute a variety of matters and in such a case it was not by the client as to absolve him from the further performance of that contract. It appears to
reasonable that a solicitor should engage himself for an indefinite time without payment. In me from the case of Vansandau v. Browne and subsequent cases which have been cited,
this case the solicitor could upon reasonable notice cease to act and sue for his costs. Even that the client may put the solicitor in such a position as to entitle him to decline to proceed;
when a retainer is entire the fact that the solicitor ceases to act for the client before the final for instance, if the solicitor asks for necessary funds for disbursements, and such funds are
conclusion of the matter in which he was retained does not necessarily preclude him from refused by the client, the solicitor is not bound to go on; and, speaking for myself, I should
recovering his costs for work done. He can recover, where he discharges himself, if his say that the solicitor is not bound to go on acting for the client if the client insists on some
client refuses to supply the requisite funds for the prosecution of the action or if the client step being taken which the solicitor knows to be dishonourable; and many other cases may
conducts himself improperly. Here, however, the decision is upon another ground, in that it be supposed in which the solicitor may be entitled to refuse to act for the client any further. I

6
should say that, when a solicitor is in a position to shew that the client has hindered and The effect of termination of the retainer will depend on whether there was an agreement in
prevented him from continuing to act as a solicitor should act, then upon notice he may relation to fees. If there was an agreement then the attorney is entitled to recover said fees
decline to act further; and in such case the solicitor would be entitled to sue for the costs by laying a bill of costs for taxation or suing to recover said fees if necessary. If there was no
already incurred.” agreement for fees then the attorney may recover fees on a quantum meruit basis. At
common law the client is entitled to change his attorney at any time and provisions are
Suits can be divided into several distinct stages at the end of which the attorney may be made for this under CPR 63.2.
entitled to render a bill for work done to the conclusion of the last stage. A non-entire
contract of retainer may be terminated without breach in any of a number of ways including: Where a solicitor terminates the retainer without justification, remuneration cannot be
1) effluxion of time i.e. where the attorney retained on a non-entire basis for a period of recovered on a quantum meruit basis. It should also be borne in mind that in litigation it is
time not enough that the retainer has been terminated and thus as long as the solicitor’s name
2) by breach of contract by client i.e. non-payment of fees continues on the record his duty to his client continues and thus until his name is recovered
3) the death of the client from the record he entitled to and charge for such work as is done in the interval before his
4) the insanity of the client name is removed from the record.
5) bankruptcy of the client
6) discharge by the client in the absence of any agreement to the contrary
7) by the solicitor for good cause upon reasonable notice
8) by other events frustrating the retainer.

At pages 72-74 of the Cordery on Solicitors it was stated that if a solicitor at common law EFFECT OF TERMINATION OF THE RETAINER – LIENS
undertakes to conduct an action he makes an entire contract and in the absence of special See Handout Solicitors Lien
agreement, he has undertaken to conduct the case to the end and thus cannot discharge
himself except for good cause and on reasonable notice to the client. However, in all The general rule is that the retaining lien extends to any deed, paper, or personal chattel
matters, if the work for which the retainer is given is protracted and in the course of it breaks which has come into the solicitors possession in the course of his employment and in his
occur, the retainer may be construed as being capable of termination as at any of the breaks capacity as solicitor with the clients sanction and which is the client’s property.
and even if not terminated would justify the delivery of a bill of costs up to the date of each
break. It must be borne in mind that the Canons do not make a distinction between entire A retaining lien extends only to the solicitor’s taxable cost, charges and expenses incurred
and non-entire contracts. Canon IV (n) provides as follows: on the instructions of the client and for which the client is liable. It includes cost incurred on
(n): an attorney may at any time withdraw from employment where: taxation or for recovery of action. It is not limited to the cost incurred in relation to the
(i) the client fails, refuses or neglects to carry out an agreement with or particular document in question or upon the particular instruction in consequence of
obligation to his attorney re fees payable by the client which the property came into the solicitor’s possession.
(ii) where his inability to work with his co-attorneys indicates that the best
interest of his client will be served by his withdrawal Nature of Right
(iii) where the client freely assents to the termination of his employment
(iv) where by reason of his physical/mental condition or other good and The solicitor is entitled to retain the property as against the client and all persons claiming
compelling reason it is difficult for him to carry out his employment through him and having no better right than the client until the full amount of the solicitor’s
effectively. taxed costs payable by the client is paid. The client has no right to inspect the document or
(v) Where any of the provisions of Canon IV (j), (k), or (m) apply (conflict of take copies of them during the existence of the lien.
interest)
Discharge of Retaining Lien
See also Canon IV (o) (p) (q)
A retaining lien may be discharged as follows:

7
1. By solicitor receiving payment of his costs Where the attorney discharges himself in litigation the rule of practice is that he must hand
2. By solicitor giving up possession of the document, but not subject to the lien over the client’s papers to the new attorney against an undertaking from that attorney to
3. By waiver or by taking another form of security without expressly reserving the lien preserve the former attorney’s lien by returning the papers to him at the end of the litigation.

This facilitates the proper administration of justice. In Gamlen Chemical Co (UK) Ltd v
Rochem Ltd (No. 1) [1980] 1 All E.R. 1049 the Court of Appeal [per Lord Templeman] held
that “where a client discharged a solicitor the court had no power to call upon the solicitor to
hand over documents because the solicitor's lien endured but where the solicitor discharged
himself in the course of an action his possessory lien over the documents became subject to
Effect of the discharge of the attorney-at-law the practice of the court, and the court would order the documents to be handed over to the
new solicitors subject to the lien unless exceptional circumstances existed when the court
In general an attorney whose retainer has been terminated is entitled to a lien on the client’s might be justified in imposing terms, accordingly, since the right inference from the facts was
papers until his fees have been paid. In the event of the solicitor’s discharge in the course of that the solicitors had discharged themselves and as there were no exceptional
proceedings, his rights in respect of a retaining lien will depend on whether he discharged circumstances to cause a modification of the usual practice, the solicitors were bound to
himself or whether he was discharged by his client. hand over the documents to the defendants' new solicitors.”

Attorney Discharged by the Client In A v B [1984] 1 All E.R. 265 Mr. Justice Leggatt held that where during litigation a solicitor
discharged himself, the usual practice of the court was to order the old solicitor to hand over
If the solicitor is discharged by the client, otherwise than for misconduct, the solicitor cannot, to the new solicitor the papers which he had on the undertaking of the new solicitor to hold
so long as his costs are unpaid, be compelled to produced or hand over the documents them subject to the old solicitor’s lien, even if that rendered the lien useless. However, the
unless he has waived his rights under the lien. court would not exercise its power automatically, the matter being equitable and therefore
one of discretion, to be exercised judicially on the facts of the case. In approaching the
In Abse v Cohen (1984) 128 S.J. 317 the claimant solicitors did work for the defendant matter the overriding principle was that the order which would be made would be that which
company but were then discharged by the defendants. Another firm of solicitors took over would best serve, or at least not frustrate, the interests of justice, and the principle that a
the claimant solicitors’ work on an undertaking to return the papers to the claimant firm and litigant should not be deprived of material relevant to the conduct of the case and so driven
preserve the claimant firm’s lien over said papers. The case was successfully concluded and from the judgment seat, if that would be the result of permitting the lien to be sustained, was
the claimant solicitors submitted a bill. However the defendants demanded a Law Society to be weighed against the principle that litigation should be conducted with due regard 266
taxation from their present solicitors. Thus it transpired that the claimant solicitors required to the interests of the court’s own officers, who should not be left without payment for what
the papers for taxation by the Law Society while the present solicitors required the papers was justly due to them. On that basis, and contrasting the conduct of the solicitors, who had
for taxation against the unsuccessful party in the recently concluded matter. The Court of behaved impeccably and of whose conduct there had been no criticism, with that of the
Appeal held that there were no grounds for depriving the claimant solicitors of their lien and plaintiffs, who, without any excuse, had not paid that which was the subject of the default
they could hold the papers until their bill was paid. judgment against them, the balance of hardship would be far greater on the solicitors if the
lien were not enforced, because they would then probably recover nothing, whereas it was
Attorney Discharged Himself open to the plaintiffs to preserve their position in the continuing litigation simply by paying
the solicitors’ costs, which they had never themselves directly disputed. The plaintiffs’
If, on the other hand, the solicitor discharges himself, he may be ordered by the court to application would accordingly be dismissed
hand over the documents to a new solicitor undertaking to hold the documents subject to the
lien and to return them after the proceedings is over. In the meantime, to allow the former
solicitor access to the documents. In Ismail v Richards Butler (a firm) the defendant solicitors refused to continue to act
because of the plaintiff clients’ failure to pay outstanding costs. Although the court ordered
the solicitor to deliver the papers required for the pending litigation to the plaintiffs’ new
solicitors, the plaintiffs were required to provide security in the sum of £450,000 for the

8
defendants’ claim by way of payment into court, or bank guarantee. In making its order the In conveyancing transactions there are several authoritative statements in the cases of the
court took into account the nature of the case, the stage at which the litigation had reached, undesirability of the same lawyer acting for both vendor and purchaser. See Moody v Cox
the conduct of the parties, the interests of justice and the fact that the value of the and Hatt per Scrutton L.J.:
defendants’ lien would be considerably diminished if the papers were handed over. “It may be that a solicitor who tries to act for both parties puts himself in such a
position that he must be liable to one or the other, whatever he does. The case has
Part V of the Legal Profession Act governs the recovery of fees by an attorney. Section 21 been put of a solicitor acting for vendor and purchaser who knows of a flaw in the
provides that the fees payable under an agreement as to fees shall not be subject to title by reason of his acting for the vendor, and who, if he discloses that flaw in the
taxation; moreover the court must be satisfied that these fees are fair and reasonable and title which he knows as acting for the vendor, may be liable to an action by his
thus may order that they be reduced if they are not. Section 22 of the Legal Profession Act vendor, and who, if he does not disclose the flaw in the title, may be liable to an
provides that an attorney shall not be entitled to commence any suit for the recovery of fees action by the purchaser for not doing his duty as solicitor for him. It will be his fault for
until after the expiration of 30 days from the date of service of a bill of those fees on the mixing himself up with a transaction in which he has two entirely inconsistent
client. This subject to the proviso that if there is probable cause for believing that the client is interests, and solicitors who try to act for both vendors and purchasers must
about to leave Jamaica, go bankrupt, compound with his creditors or do any act which would appreciate that they run a very serious risk of liability to one or the other owing to the
tend to delay or prevent the attorney receiving payment, the attorney may commence an duties and obligations which such curious relations puts upon them.”
action to recover his fees notwithstanding that 30 days have not elapsed. Facts of Moody- In this case the atty acted for both the Vendor as trustee for the
pty for sale and the Purchaser and he failed to disclose to the plaintiff certain
Canon VII (c) Nothing in these Canons shall deprive an attorney of any recourse or right valuations previously obtained that the property was not worth the price which the
whether by way of lien, set off, counter-claim, charge or otherwise against monies standing plaintiff agreed to pay.
to the credit of a client’s account maintained by that attorney.

CONFLICT OF INTEREST In Goody v Baring [1956] 2 All E.R. 11The solicitor failed to check information supplied
by the vendor in breach of his duty to the Purchaser. Mr. Justice Danckwerts observed
RETAINER BY DIFFERENT PERSONS that it was in his view practically impossible for a solicitor to do his duty to each client
properly when he tries to act for both vendor and purchaser and cited the dictum of
Scrutton L.J. in Moody v Cox & Hatt. He went on to observe that despite earlier
This situation arises where an attorney represents more than one client at the same time in statements in the cases the pitfalls did not seem to be appreciated by some
the same matter. In such a case he owes fiduciary duties to both clients and the rule is that practitioners. In the U.K. those dicta have found expression in The Law Society’s Guide
you cannot without the consent of both clients act for one while at the same time acting for to the Professional Conduct of Solicitors which generally prohibits a solicitor from acting
another in an opposite interest. This will be so whether by himself or through a partner or for both vendor and purchaser save in certain specified circumstances. The effect of this
other members of his firm. In the case of this kind of conflict the prohibition is based not so is to make separate representation of vendor and purchaser as the norm.
much on the confidentiality of each client’s information but on the inescapable conflict of
interest which is inherent in that kind of relationship. The provisions of Canon IV (k) (l) (m) are particularly instructive, though a breach of
these Canons will not be misconduct in a professional respect:
In Nocton v Lord Ashburton [1914] A.C. 932 a mortgagee brought an action against his (k): an attorney shall not accept or continue his retainer on behalf of two or more clients
solicitor, claiming to be indemnified against the loss which he had sustained by having been if their interests are likely to conflict or if the independent judgment of the attorney is
improperly advised and induced by the defendant, acting as his confidential solicitor, to likely to be impaired.
release a part of a mortgage security, whereby the security had become insufficient. The
House of Lords held that the relationship of lawyer/client is a fiduciary one and thus gives (l): notwithstanding canon (iv) (k) an attorney may represent multiple clients if he can
rise to duties and obligations which while in some cases run parallel to duties in contract are adequately represent the interests of each and each consent to such representation
nonetheless independent of those duties. after full disclosure of the possible effects of such multiple representation.

9
 (m): in all situations where a possible conflict of interest arises an attorney shall resolve (2) That a claim for breach of fiduciary duty could not be prayed in aid to enlarge the scope
all doubts against the propriety of multiple representation. of contractual duties, and since the defendants had not owed any contractual duty to advise
the plaintiff on the wisdom of entering into the transaction, they could not owe any fiduciary
Despite all of this in the Commonwealth Caribbean single representation of both vendor and duty to give such advice; that any duty of disclosure could only extend to the solicitor's
purchaser remains widespread. In Apthorpe v Liblock (1976) 28 WIR 23, 30-31 Douglas knowledge of facts and not to his lack of knowledge thereof and although the plaintiff had
CJ commented on the pitfalls of acting for both vendor and purchaser. In Straker v Maraj not been told of the refusal by her son's former solicitors to act, the defendants had not been
(1984) 39 WIR 23 Douglas C.J. held that although there is no express rule in Barbados obliged to disclose that information since they had been unaware of any ground for concern
prohibiting an attorney from acting for both vendor and purchaser on a transfer of land for over the refusal; and that, accordingly, the defendants had not been in breach of their
value at arm’s length, ordinary prudence should prevent an attorney from so acting in fiduciary duty to the plaintiff.
situations where dispute and litigation between the parties could reasonably be foreseen.
Further, a failure by an attorney to advise his client that he (ie the client) should have Moreover in the Clark-Boyce v Mouat case, Lord Jauncey of Tulichettle stated as follows:
independent advice in respect of business dealings between the two of them constitutes “There is no general rule of law to the effect that a solicitor should never act for both parties
negligence, as does a failure to point out the risks likely to arise by reason of the attorney in a transaction where their interests may conflict. Rather is the position that he may act
acting for both the vendor and the purchaser in situations such as described above. provided that he has obtained the informed consent of both to his acting. Informed consent
means consent given in the knowledge that there is a conflict between the parties and that
Despite the established rule the Privy Council [New Zealand] has recently established in as a result the solicitor may be disabled from disclosing to each party the full knowledge
Clark Boyce v Mouat [1993] 4 All E.R. 268 that there is no general rule of law that an which he possesses as to the transaction or may be disabled from giving advice to one party
attorney should never act for both parties in a transaction where their interests might which conflicts with the interests of the other. If the parties are content to proceed upon this
conflict. The true position is that the attorney may act provided that he has obtained basis the solicitor may properly act.”
INFORMED CONSENT of both parties which means consent given after receiving full
knowledge of the nature of the conflict and full knowledge of the ways in which that
conflict might inhibit the lawyer from giving completely candid advice to one client or
the other. If the parties are prepared to proceed having received that information the In Marks and Spencer v Freshfields [2004] 3 All E.R. 773 the defendant, a firm of
legal position is the lawyer is entitled to act. It will be critical to determine in such a case solicitors, was retained by a consortium in relation to the proposed acquisition of the
precisely what services are being required from the lawyer and it could well be that the claimant company. The claimant also retained the defendant to advise it in relation to
decision in this case has a lot to do with the particular facts of the case. various legal matters, although not in relation to the consortium's proposed acquisition. The
claimant sought an injunction to prevent the defendant from acting for the consortium. The
In that case the Privy Council held (1)that a solicitor could properly act in a transaction for Court of Appeal upheld Justice Lawrence Collins decision that the rule preventing a solicitor,
two parties with conflicting interests provided that he had obtained the informed consent of as a fiduciary, from acting for clients with potentially conflicting interests without their
both parties; that informed consent meant that each party knew that there was a conflict consent was not restricted to conflicts in the same transaction; that the rule applied where
between himself and the other which might result in the solicitor being disabled from the conflict arose from different transactions providing there was a reasonable relationship
disclosing his full knowledge of the transaction or from giving one party advice which between them; and that, in the circumstances there was an actual or potential conflict of
conflicted with the interests of the other; that in determining whether the solicitor had interest in the solicitors acting for the consortium especially since a Chinese wall would not
obtained informed consent it was necessary for the court to determine the precise services be effective.
required of him by the parties, and in circumstances where the plaintiff had required the
defendants to do no more than carry out the mortgage transaction and explain its Chinese Walls
consequences, had been aware of the consequences of mortgage default and had rejected
independent advice, there had been no duty on the defendants to refuse to act for her; that, In Prince Jefri Bolkiah v KPMG [1999] 2 A.C.222 the House of Lords held that where it
further, solicitors were under no duty to proffer unsought advice on the wisdom of entering was established that solicitors, or accountants providing litigation services such as those
into a transaction to a client in full command of his faculties; and that, accordingly, the provided by the defendants, were in possession of information confidential to a former client
defendants had not been negligent or in breach of their contractual duty to the plaintiff which might be relevant to a matter in which they were instructed by a subsequent client the
court should intervene to prevent the information from coming into the hands of anyone with

10
an adverse interest unless it was satisfied that there was no real risk of disclosure; that confidential information although Lord Millett was careful to state that there is no rule of law
since it had been established that the defendants were in possession of confidential that Chinese walls or any such similar arrangement can never be sufficient to eliminate the
information the burden was on them to show that there was no risk that the information risk.
would come into the possession of those acting for the other party; that although there was
no rule of law that "Chinese walls" or other similar arrangements were insufficient to In Prince Jefri Bolkiah v KPMG [1999] 2 A.C.222
eliminate the risk, unless special measures were taken information moved within a firm and
the court would restrain the defendants from acting for a new client unless it was satisfied on A solicitor owed a continuing professional duty to a former client following the termination of
clear and convincing evidence that effective measures had been taken to ensure that no the client relationship, to preserve the confidentiality of information imparted during the
disclosure would occur; that in order to be effective arrangements had to be an established subsistence of that relationship.
part of the organizational structure of the firm and the ad hoc arrangements made by the
defendants were inadequate in the circumstances to prevent the risk of inadvertent
disclosure; and that, accordingly, since the defendants had not discharged the burden of
showing there was no real risk that information confidential to the plaintiff might unwittingly
or inadvertently come into the possession of those working on the agency investigation, the Chinese Walls
injunction would be granted. Rakusen v. Ellis, Munday & Clarke [1912] 1 Ch. 831, C.A. The court stated that ideally a company utilizing Chinese walls should have a combination of
disapproved. the following organizational arrangements:
(1) the physical separation of the various depts. In order to insulate them from each other;
(2) an educational program to emphazise the importance of not improperly or inadvertently
FORMER CLIENT CONFLICTS divulging confidential information
(3) Strict and carefully defined procedures for dealing with a situation where it is felt that the
Where one of the parties is a former client of the attorney that particular contract of retainer wall should be crossed and the maintaining of proper records
is at an end and there is therefore no question of a continuing fiduciary obligation to that (4) monitoring by compliance offices of the effectiveness of the wall
client. The true nature of the problem in this case although it also traditionally described as (5) disciplinary sanctions where has been a breach of the wall
one of conflict of interest is really one of how to ensure the preservation of the former client’s
confidential information. In such cases the court will restrain the attorney at the instance of In Bolkiah the nature of the walls imposed were as follows:
the former client from acting in two cases: (1) the selection of staff was intended to ensure that nobody in possession of such
information was permitted to work on the 2nd project
1) the attorney is in possession of confidential information to the disclosure of which the (2) Steps were taken to avoid the risk of info. From the first project becoming available to
client has not consented and 2) that the information is or may be relevant to the new matter those working on the second project
in which the interests of the new client is or may be adverse to that of the former client.
The court felt that effective Chinese walls need to be an established part of the
In the old leading case of Rakusen v Ellis, Munday & Clarke 1912 1 Ch. 831 the CA held organizational structure of the firm, not created ad hoc and dependent on the
that there was no general rule that a solicitor who acted for some person either bf or after acceptance of evidence sworn for the purpose by members of staff engaged on the
litigation began could in no case act for the opposite side. Bf the court will interfere, there relevant work.
must be some degree of the likelihood of mischief or real prejudice, ie. Of the confidential
information imparted by the former client being used for the benefit of the new client.

In the Bolkiah case the House of Lords reversed the Rakusen case by holding that the Lord Millett stated that:
court should intervene unless it is satisfied that there is no risk of disclosure. To this extent “Whether founded on contract or equity, the duty to preserve confidentiality is
Rakusen may be treated as overruled. It is against this background that the court in Bolkiah unqualified. It is a duty to keep the information confidential, not merely to take all
went on to consider the effectiveness of KPMG’s ‘Chinese Wall’ and they held in that case reasonable steps to do so. Moreover, it is not merely a duty not to communicate the
that the steps that had been taken were insufficient to prevent disclosure of the client’s information to a third party. It is a duty not to misuse it, that is to say, without the

11
 consent of the former client to make any use of it or to cause any use to be made of possession, and that the transaction was a fair one in all the circumstances. To fulfill those
it by others otherwise than for his benefit. The former client cannot be protected conditions it must be shown that the solicitor advised his client as diligently, and that the
completely from accidental or inadvertent disclosure. It is of overriding importance for transaction was as advantageous, as if the client had been dealing with a stranger. This
the proper administration of justice that a client should be able to have complete principle is of wide application, and should not be regarded as a technical rule of English
confidence that what he tells his lawyer will remain secret. This is a matter of law. Although the relationship of solicitor and client, in a strict sense, has terminated, the
perception as well as substance. It is of the highest importance to the administration same principle applies so long as the confidence naturally arising from that relationship is
of justice that a solicitor or other person in possession of confidential and privileged proved, or may be presumed, to continue.
information should not act in any way that might appear to put that information at risk
of coming into the hands of someone with an adverse interest….. In my view no In order to establish this the lawyer must show that he has advised the client as diligently as
solicitor should, without the consent of his former client, accept instructions unless, he would have done had he not been a party to the transaction, he must show that the
viewed objectively, his doing so will not increase the risk that information which is transaction was advantageous to the client as if he were dealing with a stranger and the
confidential to the former client may come into the possession of a party with an only way of ensuring this in a practical sense is to ensure that the client receives
adverse interest.” independent legal advice. In Spector v Ageda [1973] Ch 30 here a solicitor agreed to lend
her client money to pay off a loan from an unlicensed money lender, the loan was illegal and
unenforceable. The solicitor was held to be in breach of her duty to the client in failing to
The case of Saminadhen v Khan [1992] 1 All E.R. 163 Donaldson M.R. stated “ I can advise that the loan from the moneylender need not be repaid. It was held that the solicitor
conceive of no circumstances in which it would be proper for a solicitor who has acted for a has a personal interest in the matter in that her loan to the client was to be repaid at an
defendant in criminal proceedings the retainer having been terminated to then act for a co- interest and the moneylender was a close relative of hers. Megarry J held (per curiam) that
defendant where there is a cut-throat defence between the two defendants.” in all ordinary circumstances a solicitor ought to refuse to act for a person in a transaction to
which the solicitor is himself a party with an adverse interest; and even if he is pressed to
act after his refusal, he should persist in that refusal. See Canon 4 (j) Ja. Per Megarry J at
CONFLICT OF INTEREST BETWEEN ATTORNEY AND CLIENT page 47 of the judgment:

Moody v Cox & Hatt “The courts have often pointed out the undesirability of a solicitor acting for both
It was observed that where a transaction involves a relationship between attorney and client parties in a conveyancing transaction, as by acting for both vendor and purchaser;
it would be difficult for it to be upheld without the client having received independent legal yet the practice remains widespread, sustained, it seems, by beliefs such as those of
advice. This is confirmed by the leading authority of Demerara Bauxite Co Ltd v Hubbard economy, efficiency and speed, and, no doubt, others. In such cases, the solicitor, of
[1923] A.C. 673 [a Privy Council decision from the West Indian Court of Appeal] in which the course, has a double duty to perform: he must safeguard the adverse interests of
rule was laid down that in the absence of competent independent advice a transaction each of his clients. In the absence of any personal interest to impel him to one side
between attorney and client cannot be upheld unless atty can prove affirmatively that the or the other, a solicitor can, and doubtless in the vast majority of cases does, stand
client had disclosed to him all relevant information and the lawyer can show that the indifferent, and, at some risk, discharge his duty of acting impartially in the interests
transaction was in itself a fair one having regard to all the circumstances. of each of his clients. Where, however, one of the parties is the solicitor himself, then
Facts- the atty was the Purchaser from an atty as well as the atty in the transaction. The the matter seems to me to be entirely different: the solicitor must be remarkable
atty here had not advised the client independently or at all, the land was not valued as would indeed if he can feel assured of holding the scales evenly between himself and his
have been done with a stranger and the transaction was deemed disadvantageous to the client. Even if in fact he can and does, to demonstrate to conviction that he has done
client as in negotiating the best price for sale of lans the atty as representing the vendor so will usually be beyond possibility in a case where anything to his client's detriment
conflicted with his interest to get the land at the lowest point. has occurred. Not only must his duty be discharged, but it must manifestly and
undoubtedly be seen to have been discharged. I abstain from any categorical
The court held that a transaction, such as the purchase of property under an option, where negative: the circumstances of life are of such infinite variety. But I can at least say
the vendor and purchaser are client and solicitor (or where a similar confidential relationship that in all ordinary circumstances a solicitor ought to a refuse to act for a person in a
exists) and the vendor has not had independent advice, cannot be upheld unless it is proved transaction to which the solicitor is himself a party with an adverse interest; and even
affirmatively that the purchaser disclosed, without reservation, all the information in his if he is pressed to act after his refusal, he should persist in that refusal. Nobody can

12
 insist upon an unwilling solicitor acting for him, at all events when there is a conflict arbitrator a barrister from the same set of chambers as counsel instructed to appear for it as
of interests. If a solicitor does nevertheless act for a client in a transaction with the advocate. At the time of the appointment counsel appointed as the claimants’ barrister had
solicitor himself, the question is what is the extent of his duty.” only recently moved to that set of chambers, did not know the arbitrator and did not share
the same premises. The defendant applied for the arbitrator's removal on the ground, under
section 24(1) (a) of the Arbitration Act 1996, that his membership of the same chambers as
the claimant’s counsel gave rise to "justifiable doubts as to his impartiality." However, the
defendant did not appear at the hearing and was not represented.Justice Rix held per
curiam that the test to be applied under section 24(1)(a) is an objective one. The court must
find that circumstances exist, and are not merely believed to exist, which justify doubts as to
impartiality. An unjustifiable or unreasonable doubt is not sufficient. On the other hand, it is
See Central Trust Co v Rafuse (1983) 147 D.L.R. (3rd ed) 260. not necessary to prove actual bias. First, actual bias will always disqualify a person from
sitting in judgment. But the importance of public confidence in the administration of justice is
In Laylor v Campbell [1987] 24 J.L.R. 67 the respondent attorney represented the such that even the appearance of bias will disqualify. The second rule, that no one must be
appellant who was to stand trial for murder. The appellant was a man of little means and judge in his own cause, covers any situation where a judge is a party to the case, or has a
thus in order to pay his attorney’s fees, he arranged with the appellant to sell him his only pecuniary or proprietary interest in it, or is so closely connected with a party to the
asset which was an acre of land with a house on it. The transaction took place in prison. The proceedings that he may be said to be acting in his own cause. In such a case
appellant then filed a writ against the respondent impugning their earlier agreement for sale disqualification is automatic and there is no question of investigating whether there is a
on the basis of undue influence and fraudulent misrepresentation. On appeal the Court of likelihood or even suspicion of bias. Thirdly, a judge is disqualified if there is a real danger
Appeal held that: that he is biased. No allegation of actual bias has been made against the arbitrator. Nor can
a judge be said to be judge in his own cause because he knows the advocate or shares or
(i) that an Attorney-at-Law purchasing the property of his client owes him a duty to has shared tenure in the same set of chambers with him
more full and free disclosure of every material fact he knows and must satisfy the
Court that the contract is one of full advantage to the client.
(ii) that the respondent had not satisfied the Court that he had given the client
reasonable advice against himself that he would or should have given if the sale
had been to a stranger, nor had it been established that the appellant had been
given competent, independent advice and there is also no evidence to show that
the true value of the land had been established at the material time; REGINA v. BOW STREET METROPOLITAN STIPENDIARY
(iii) that there must be an order setting aside the said contract of sale and re-vesting MAGISTRATE AND OTHERS, Ex parte PINOCHET UGARTE (No. 2)
the said land in the appellant; no order in respect of outstanding fees as the rent
and profit of the land over the period would more than compensate for the The applicant, a former head of state of Chile who was on a visit to London, was
charges. arrested under warrants issued pursuant to section 8(1) of the Extradition Act 1989
following receipt of international warrants of arrest issued by a Spanish court alleging
The Canons of Professional Ethics have specific provisions preventing attorneys from acting various crimes against humanity, including murder, hostage-taking and torture,
in a matter in which his personal interests is likely to conflict with his professional duty committed during the applicant's period of office and for which he was knowingly
without full disclosure and the informed consent of his client. Canon IV (j) provides that responsible. The Divisional Court quashed the warrants on the ground, inter alia, that
except with the specific approval of his client given after full disclosure an attorney shall not as a former head of state he was immune from arrest and extradition proceedings in
act in any matter where his personal interests and professional interests conflict or are likely the United Kingdom in respect of acts committed while he was head of state. The
to conflict. See also Porter v McGill on the test of bias quashing of the second warrant was stayed pending an appeal to the House of Lords
by the prosecuting authorities on the issue of the immunity enjoyed by a former head
In Laker Airways v FLS Aerospace [2000] 1 W.L.R. 113 the claimant and defendant had of state. Before the main hearing A.I., a human rights body which had campaigned
disputes with each other and took the matter to arbitration The claimant appointed as against the applicant, obtained leave to intervene in the appeal and was represented

13
 by counsel in the proceedings. The appeal was allowed by a majority of three to two attorney by the client in a will prepared by the attorney. While the rules are stricter in some
and the second warrant was restored pending a decision by the Home Secretary cases than in others, the general rule is that in his dealing with his client the attorney must
whether to issue an authority to proceed pursuant to section 7(1) of the Act. exercise the utmost good faith and that in any financial transaction with the client save with
Subsequently the applicant's advisers discovered that one of the judges who had regard to his own fees there will be a presumption that that transaction should not be upheld
been part of the majority was, although not a member of A.I., an unpaid director and unless the attorney can establish that it was effect by the free exercise of the client’s will and
chairman of A.I.C. Ltd., a charity which was wholly controlled by A.I. and carried on without any influence on the part of the attorney. Demerara Bauxite Co v Hubbard
that part of its work which was charitable. One of the objects of A.I.C. Ltd. was to (supra).
procure the abolition of torture, extra-judicial execution and disappearance. The
Home Secretary signed the authority to proceed. Cordery on Solicitors, 8th edition, at page 18 provides that in the case of a solicitor or other
On a petition by the applicant for the House of Lords to set aside its previous person who prepares or procures a will under which he takes a comparatively large benefit
decision on the ground of apparent bias on the part of the judge: - the court will require affirmative proof of the testator’s knowledge and approval (i.e. an
Held, granting the petition, that as the ultimate court of appeal the House had power attestation clause). Cordery also provides that the rule as to gifts made by a client to his
to correct any injustice caused by one of its earlier orders; that the fundamental solicitor during the continuance of their relationship is far more stringent than that as to
principle that a man may not be a judge in his own cause was not limited to the purchases. Thus the mere relationship of the parties renders the solicitor almost incapable
automatic disqualification of a judge who had a pecuniary interest in the outcome of of receiving a gift in addition to his proper remuneration and this rule has been applied to
a case but was equally applicable if the judge's decision would lead to the promotion gifts made to the solicitor’s wife even where she was also the client’s niece. In Liles v Terry
of a cause in which he was involved together with one of the parties; that, although [1895] 2 Q.B. 679 the client of a solicitor without independent advice made a voluntary
the judge could not personally be regarded as having been a party to the appeal, conveyance to him of leasehold premises in trust for herself and after her death in trust for
A.I., which had been a party with the interest of securing the extradition of the the solicitor’s wife who was her niece for her separate use absolutely and the Court of
applicant to Spain, and A.I.C. Ltd. were both parts of a movement working towards Appeal per Lord Esher M.R. held that the well settled rule of equity being that such a gift
the same goals; that in order to maintain the absolute impartiality of the judiciary could not be supported unless the donor had competent and independent advice in making
there had to be a rule which automatically disqualified a judge who was involved, it the conveyance must be declared void. In Goddard v Carlisle (1821) 9 Price 169 the
whether personally or as a director of a company, in promoting the same causes in Court held that to constitute the connection of attorney and client it is sufficient that the party
the same organisation as was a party to the suit; and that, accordingly, the earlier has no other solicitor to whom he is in the habit of resorting to for advice and it is not
decision of the House would be set aside necessary that the Attorney be shown to be in any particular manner or to any extent
employed in law business for the client.
DISABILITY OF THE ATTORNEY
In such case the attorney is obliged to ensure that there is full disclosure to the client of all
Nocton v Lord Ashburton reaffirmed that the relationship between attorney and client is a the circumstances of the transaction and that the client’s interests are protected by
fiduciary one thus giving rise to rights and obligations that are independent of contract. It is independent legal advice that is itself fully informed and that is truly independent. This kind
this fiduciary relationship which disables an attorney from entering into certain types of of case should be distinguished from those cases where there is a dispute between attorney
transactions with a client, particularly where the client has not had the benefit of and client as to the fairness of the attorney’s fees. In such cases the proper mechanism for
independent legal advice. Some of these disabilities we have already noticed in the context resolving that dispute is to be found in the statutory provisions which provide for the taxation
of other rules with which they overlap for example rules relating to conflict of interest of attorney’s costs and the like. Sections 21 to 29 of the Legal Profession Act deal with
between attorney and client. Demerara Bauxite Co v Hubbard [1923] A.C. 673 which the situations where an attorney seeks to recover his fees.
reaffirmed the principle that on a transaction involving lawyer and client there was a
presumption of undue influence which could only be displaced by the attorney showing that In Brown v Dillon and Vassell [1985] 22 JLR 67 the appellant attorney-at-law brought an
the transaction was as beneficial to the client as it would have been as it would have been if action against the respondents to recover the sum of $ 39 K being the fee charged for
entered into with a stranger and that the client had the benefit of independent legal advice. representing the first respondent in Bermuda. The appellant had been approached by the
2nd respondent and she paid the sum of $ 1K being a retainer on behalf of the 1st
Other areas of disability by the attorney relate to the sales or purchase of property to or from respondent. The appellant then subsequently entered into an agreement with the
a client, loans by the attorney to a client, gifts by the client to the attorney and bequest to the respondents where he held himself out has having attained the rank of Q.C. when this was

14
not the case and the court found that there was no agreement between the appellant and
the first respondent. The court also found that the relationship between the appellant and In McMaster v Byrne [1952] 1 All E.R. 1362 which applied Allison v Clayhills, the
first respondent was a fiduciary one and thus the agreement was deemed void and respondent had acted as M.'s solicitor in connection with a number of important business
unenforceable. On appeal the C.A. held that Section 21 of the Legal Profession Act permits transactions, including the acquisition of C. Securities and the transfer to that company of
an attorney-at-Law to bring action for the recovery of fees, and also permits the Court to the promoters' holdings in S.P., of whom M. had been one of the promoters. At the instance
reduce the amount agreed to be payable by the client if the agreement appears to the Court of the respondent, M. had granted P. an option to purchase his shares in C. Securities at a
to be "unfair and unreasonable", the onus of proving this being on the client. The first named specified price. The respondent knew that J. Bros. were interested in buying the whole of
respondent had, on the evidence discharged the onus placed on him by the statute and had the shares of S.P. at a very favourable price. The respondent obtained an assignment of the
established that the fee agreement was in fact unfair and unreasonable and it was therefore option which M. had granted to P., and, eventually, when J. Bros. bought the shares of S.P.,
open to the Court to order a reduction in the amount payable for fees. In all the realised a substantial profit. After M.'s death, his executors, the appellants, claimed an
circumstances, taking into account the appellant's false representation that he was a account of the profit. It was shown in evidence that the respondent had told M. of the
Queen's Counsel, the fact that he had also been retained by a co-defendant in the case and negotiations with J. Bros, but it was also shown that he knew of the reduced price of the
the fact that he had not in fact appeared for the first named respondent at the preliminary shares, which price was eventually paid for them, and that P. had told him that it looked as
enquiry, the fee of $40,000.00 was manifestly excessive, unfair and unreasonable and though the negotiations might come through; but there was no evidence that he had passed
would be reduced to $20,000.00 less the $1,000.00 already paid. on either of the pieces of information to M. Held, the onus of upholding the transaction lay
on the respondent; justice could not be done without a fresh trial of the issue whether the
respondent had discharged the onus resting on him by reason of the confidential
SALE TO AND FROM THE CLIENT relationship existing between him and M. These rules may in particular cases continue to
apply notwithstanding the termination of the attorney client relationship in the strict sense
The most common examples of cases which have been found to attract the disability have and in determining whether in a particular transaction any duty remains in the attorney. All
to do with sales and purchases of land. In Knowles v Francis (1983) 32 WIR 205 the the circumstances of the individual case must be weighed and examined before taking a
OECS Court of Appeal held that: decision.

(1) the agreement to sell the land had been made at a time when F had been retained as In Allison v Clayhills [1904-7] All E.R. 500 Parker, J at page 502 said: "In considering
solicitor in suit 57 of 1960 and, as the agreement involved the subject-matter of that whether in any particular transaction any duty exists such as to bring the ordinary rule into
litigation, it constituted champerty or, at least, savoured of champerty. Wood v Downes operation, all the circumstances of the individual case must be weighed and examined.
(1811) 18 Ves 120 applied. Thus, a solicitor may by virtue of his employment acquire a personal ascendancy over a
client and this ascendancy may last long after the employment has ceased, and the duty
(2) it was F’s duty to have advised K to take independent advice on the transaction which towards the client which arises out of any such ascendancy will last as long as the
was not a simple one, and F was in breach of that duty; accordingly, the presumption of ascendancy itself can operate. Again, a solicitor may by virtue of his employment acquire
undue influence arising from the relationship between solicitor and client had not been special knowledge, and the knowledge so obtained may impose upon him the duty of giving
rebutted and the agreement had to be set aside on this ground also. Edwards v Meyrick advice or making a full and proper disclosure in any transaction between himself and his
(1842) 2 Hare 60 applied. client, though such transaction may take place long after the relationship of solicitor and
client in its stricter sense has ceased to exist. And there may be other circumstances which
Per curiam. An attorney is not affected by the absolute disability to purchase which attaches may impose a duty on a solicitor, which duty may continue to exist after the relationship of
to a trustee; but if he becomes the buyer of his client’s property, he does so at his peril. He solicitor and client in the strict sense has ceased."
must be prepared to show that he has acted with the most complete faithfulness and
fairness; that his advice has been free from all taint or self-interest; that he has not
misrepresented anything, or concealed anything; that he has given an adequate price; and
that his client has had the advantage of the best professional assistance which, if he had GIFTS BY THE CLIENT TO THE ATTORNEY
been engaged in a transaction with a third party, he could possibly have afforded. Lalor v The rule as to gifts by the client to the attorney is in fact more stringent that that as to
Campbell (1987) 24 JLR 67 (supra) purchases and the mere fact of the relationship between the parties render the attorney
15
almost incapable of receiving a gift in addition to his proper remuneration particularly where not independently advised and no copies of the documents were given to her. The validity of
that gift is of a substantial value. In Wright v Carter [1903] Ch 27 the Court of Appeal held the will and codicil was challenged on the ground that she did not know or approve of their
that a gift by a client to his solicitor raises prima facie the presumption that it was unduly contents, but no allegation of fraud was made in the pleadings. There was no evidence but
influenced by the fiduciary relation subsisting between them; and the onus is on the solicitor that of the solicitor as to the instructions given by the testatrix.
to prove that the gift was uninfluenced by that relation. The presumption is, however, not
irrebuttable, but it is not sufficiently rebutted by the mere fact of the client having employed a In Re A Solicitor [1974] 3 All E.R. 853 – A gift by a client to the solicitor in a will was
separate and independent solicitor--even though without any fraud or collusion on the part of challenged in disciplinary proceedings against the solicitor. The Disciplinary Tribunal had
the two solicitors--to advise him in the matter of the gift; for the presumption will continue so described the standard as a very high one which required that the solicitor tell the client that
long as the relation of solicitor and client continues for other purposes outside the gift, or at she should be separately advised and if she refuses to accept that advice and to go to
all events until it can be clearly inferred that the influence arising from the relation no longer another solicitor then the solicitor/beneficiary should forego his benefit under the will. The
exists. On the other hand, there is no objection to a sale by a client to his solicitor, provided Divisional Court held that since it was primarily a matter for the profession and not the courts
the solicitor can prove--(1.) that the client was fully informed; (2.) that he had competent to determine what constituted professional misconduct, the court would accept the very high
independent advice; and (3.) that the price given was a fair one. It should be noted however standard set by the profession and expressed through the Disciplinary Committee that a
that the authorities clearly distinguish trifling gifts which in the absence of dishonesty on the solicitor had now not merely to advise a client to obtain independent advice before making a
part of the attorney have never been regarded as unacceptable. will but to ensure that the client received that advice before he took under the will, that,
accordingly, the solicitor had been guilty of professional misconduct. Lord Widgery CJ
commented that the standard adopted by the disciplinary tribunal was an exceptionally high
BEQUESTS AND DEVISES BY THE CLIENT TO THE ATTORNEY standard probably higher than that in the probate court where the validity of a will is in
The rule is that while an attorney may take a benefit under a will prepared by him for a client question. Nevertheless the court did not disturb the tribunal’s findings.
in the case particularly of substantial benefit, the burden of proof will lie squarely on the
attorney to show that the testator was capable of making the will, that he knew and Client’s funds should be kept in a separate client’s account. In Brown v Inland Revenue
approved of its contents, that he was under no undue influence by the attorney and that he Commissioners [1965] A.C. 244 the House of Lords held that if a person in a fiduciary
received proper independent legal advice. In Wintle v Nye [1955] 1 All E.R. 552 per position receives any financial benefit arising out of the use of the property of the beneficiary
Simmonds V.C.: “It is not the law that in circumstances can a solicitor or other person who he cannot keep it unless he is authorized to do so. On the facts the appellant was not
has prepared a will for a testator take a benefit under it but that fact creates a suspicion that authorized to keep this interest either by custom or by implied agreement although a similar
must be removed by the person propounding the will. In all cases the court must be vigilant practice has long been followed by a number of solicitors. The general principle was stated
and jealous; the degree of suspicion will vary with the circumstances of the case. It may be to be well-settled by Lord Reid at page 257 and to apply to solicitors, with the result that
slight and easily dispelled. It may on the other hand be so great that it can hardly be interest earned on client’s funds was held to be the property of the client and not the solicitor
removed. In the present case the circumstances were such as to impose on the respondent who had claimed the income as his own for income tax purposes. In Jamaica, the situation
as heavy a burden as can well be imagined.” is now covered by the Legal Profession Accounts & Records Regulations 1999 in
particular Regulations 8, 9, and 11. These regulations require the attorney’s to supply
In that case the House of Lords held that the onus being on the solicitor to establish accountant’s reports to the General Legal Council on an annual basis. In so far as interest is
knowledge and approval by the testatrix, it was the duty of the court to be vigilant and concerned the regulations require an attorney who holds clients funds to account to the
jealous in scrutinising all the circumstances; inasmuch as the judge's summing-up to the jury client for interest on those funds in two circumstances:
did not sufficiently scrutinise them, in relation to the exceptionally heavy burden of proof 1. where the funds are in fact held in an interest-bearing account or
which lay on the solicitor, and did not place before them the considerations to be borne in 2. where the funds are not held in an interest-bearing account the attorney will
mind in deciding whether or not to believe his evidence, there was misdirection, and the nevertheless be required to account to the client for interest on the money where
verdict, so far as the gift of residue was concerned, could not stand. The facts of that case the sum which he hold for the client is $ 200,000 or more and he holds it for 30
are that an elderly woman, unversed in business, signed a will and subsequently a codicil days or more.
prepared by her solicitor, who was not an intimate friend. The solicitor was named as sole
executor and, after provision had been made for various legacies and gifts, he was to take _
the residue, which amounted to the bulk of her large estate. The will was complex; she was
16
AUTHORITY OF ATTORNEY WHEN RETAINED outcome of the trial. If the attorney fails in discharging this duty he may find himself unable
to recover these expenses from the client on taxation as between attorney and client. In
Actual authority Blythe v Fanshawe (1882) 10 Q.B.D. 207 the Court of Appeal held that where a solicitor
proposes to incur unusual expense in the course of an action, such as taking shorthand
Since the retainer is the basis of the relationship between attorney and client the attorney’s notes of the evidence or procuring the attendance of experts and scientific witnesses, it is
actual authority will generally spring from the retainer itself whether it be a general or special his duty to point out to his client that such expense might not be allowed on taxation as
retainer. Once the scope of his authority is established however he will be deemed to have between party and party, and might therefore have to be borne by the client whatever might
the implied authority to take such steps as are necessary and in the client’s best interest to be the result of the trial. Therefore where the solicitor had omitted such duty, he was not
achieve the object for which he was retained. In Wright v Pepin [1954] 2 All E.R. 52 allowed on taxation as between solicitor and client the costs of shorthand notes of the
property the subject of a mortgage in 1928 was destroyed by enemy fire in 1940. Since the evidence, although the client authorized him to employ a shorthand writer to take such notes
principal and interest had remained unpaid for 12 years the mortgagor sought an order for and used and otherwise availed himself of them after they had been so taken.
possession of the premises. The mortgagor by her defence claimed that as there had been
no payment of interest or acknowledgment of the mortgage for over 12 years, time under the In Re Snell (1887) 5 Ch. D 815 a solicitor had a retainer to act generally for a company, and
Limitation Act, 1939, had now run, and the mortgagees' claim was statute-barred. The also a special retainer to conduct a Chancery suit on behalf of the company. Being
mortgagees contended that the existence of the mortgage had been acknowledged in letters employed by another client to go to America, he collected information on behalf of the
from the mortgagor's solicitor to the mortgagees' solicitors. The mortgagor denied that the company in furtherance of their suit, but without special instructions from the company to do
letters constituted an acknowledgment, but contended that if they did constitute an so. On his return to England he reported to the company what he had done, and they made
acknowledgment, the solicitor had no authority to make them. That as the solicitor was use of the information he had obtained. He afterwards took three journeys to Paris to
employed by the mortgagor to clear up her affairs, which included the mortgaged property, conduct negotiations for a compromise of the same suit, without instructions from the
the letter of August 4, 1950, was within the scope of her authority. The period of 12 years company, but with the knowledge of some of the directors, and on two of them he was
under the Limitation Act not having run, the mortgagees were entitled to an order for accompanied by the chairman:--
possession. Held, by the Court of Appeal (reversing the decision of the Master of the Rolls), that, under
the special circumstances of the case, the solicitor was entitled to charge the company for
In Thompson v Alexander (1964) 6 W.I.R. 538 the respondent offered to purchase his professional services in America, and also for his professional services and expenses on
premises belonging to the appellant and by letter addressed to the appellant’s agent and her his journeys to Paris.
co-owners stipulated that he should get registered title within four months. The appellant
instructed their solicitor to prepare a registered title and complete the contract of sale. The An attorney does not have the authority to receive notices on behalf of a client without the
solicitor realizing the impossibility of obtaining the issue of a registered title within four express authority of the client. In Singer v Trustee of the Property of Munro [1981] 3 All
months succeeded in getting the respondent to waive the stipulation. The solicitor did not E.R. 215, 218 it was held per curiam that: It is a common fallacy to think that solicitors have
consult the appellant or her co-owners before doing this. The appellant refused to complete an implied authority on behalf of their clients to receive notices. They may have express
the sale and in an action by the respondent specific performance was ordered against her. authority to receive them, but in general a solicitor does not have any authority to accept a
On appeal it was contended that the solicitor had no authority to bind the appellant and her notice on behalf of his client.
co-owners in effecting the waiver of the stipulation as to time as this was not within the
scope of his authority. The Court of Appeal of Jamaica held that the solicitor had a general Apparent/Ostensible Authority
authority from the appellant and her co-owners to complete the sale and what he did to The phrase ‘actual authority’ denotes that authority which flows from the contract of retainer
protect their interest was something that fell within the scope of such authority. See (1885) itself and its scope is to be ascertained by applying ordinary principles of construction of
31 Ch. 296. [1958] 3 All E.R. 179 contracts including any proper implications to be made from the express words used, the
usages of the trade and the course of business between the parties. Apparent or ostensible
However where the attorney proposes to incur unusual expenses during the course of an authority on the other hand may give rise to binding relations between the lawyer and 3rd
action/transaction for e.g. engaging a stenographer to take verbatim notes of evidence at parties even in cases where the entering into such relations exceeds the lawyers’ actual
trial it is his duty to point out to his client that such expenses may not be recoverable on a authority. In Freeman & Lockyer v Buckhurst Park Properties [1964] 2 Q.B. 480, Lord
taxation of costs as between parties and might have to be borne by the client whatever the Diplock at pages 502-504 of the judgment stated as follows:

17
 the commonest is representation by conduct, that is, by permitting the agent to act in some
“It is necessary at the outset to distinguish between an "actual" authority of an agent on the way in the conduct of the principal's business with other persons. By so doing the principal
one hand, and an "apparent" or "ostensible" authority on the other. Actual authority and represents to anyone who becomes aware that the agent is so acting that the agent has
apparent authority are quite independent of one another. Generally they co-exist and authority to enter on behalf of the principal into contracts with other persons of the *504 kind
coincide, but either may exist without the other and their respective scopes may be different. which an agent so acting in the conduct of his principal's business has usually "actual"
As I shall endeavor to show, it is upon the apparent authority of the agent that the contractor authority to enter into.”
normally relies in the ordinary course of business when entering into contracts.
It follows from this that an attorney whose actual/implied authority empowers him to
An "actual" authority is a legal relationship between principal and agent created by a compromise litigation may actually do so in terms which exceed his actual authority. So long
consensual agreement to which they alone are parties. Its scope is to be ascertained by as it falls within his apparent or ostensible authority and the compromise arrived at does not
applying ordinary principles of construction of contracts, including any proper implications contain collateral matters entirely extraneous to the litigation. See Waugh v HB Clifford &
from the express words used, the usages of the trade, or the course of business between Sons [1982] 1 All E.R. 1095 (supra).
the parties. To this agreement the contractor is a stranger; he may be totally ignorant of the
existence of any authority on the part of the agent. Nevertheless, if the agent does enter into Attorney’s liability for acting without authority
a contract pursuant to the *503 "actual" authority, it does create contractual rights and An attorney who acts without his client’s authority is liable to the client for breach of the
liabilities between the principal and the contractor. It may be that this rule relating to contract of retainer. If the contract does not specifically limit his authority he may be liable in
"undisclosed principals," which is peculiar to English law, can be rationalized as avoiding negligence. The actions of an attorney who commences litigation without authority may be
circuity of action, for the principal could in equity compel the agent to lend his name in an ratified by the court. See Danish Mercantile Co v Beaumont (supra).
action to enforce the contract against the contractor, and would at common law be liable to
indemnify the agent in respect of the performance of the obligations assumed by the agent An attorney who acts and continues to act without authority may be liable for breach of
under the contract. warranty of authority by reason of the fact of purporting to act on behalf of the client he
impliedly contracts that he has the client’s authority and his liability in this regard is the same
An "apparent" or "ostensible" authority, on the other hand, is a legal relationship between if he knew of the defect or not. Per Swinfen-Eady J in Yonge v Toynbee at page 234:
the principal and the contractor created by a representation, made by the principal to the “It is in my opinion essential to the proper conduct of legal business that a solicitor
contractor, intended to be and in fact acted upon by the contractor, that the agent has should be held to warrant the authority which he claims of representing the client; if it
authority to enter on behalf of the principal into a contract of a kind within the scope of the were not so, no one would be safe in assuming that his opponent's solicitor was duly
"apparent" authority, so as to render the principal liable to perform any obligations imposed authorized in what he said or did, and it would be impossible to conduct legal
upon him by such contract. To the relationship so created the agent is a stranger. He need business upon the footing now existing; and, whatever the legal liability may be, the
not be (although he generally is) aware of the existence of the representation but he must Court, in exercising the authority which it possesses over its own officers, ought to
not purport to make the agreement as principal himself. The representation, when acted proceed upon the footing that a solicitor assuming to act, in an action, for one of the
upon by the contractor by entering into a contract with the agent, operates as an estoppel, parties to the action warrants his authority.”
preventing the principal from asserting that he is not bound by the contract. It is irrelevant
whether the agent had actual authority to enter into the contract. The sanction for breach of warranty of authority by an attorney is that the attorney is
personally liable for the costs of the other party.
In ordinary business dealings the contractor at the time of entering into the contract can in
the nature of things hardly ever rely on the "actual" authority of the agent. His information as
to the authority must be derived either from the principal or from the agent or from both, for
they alone know what the agent's actual authority is. All that the contractor can know is what
they tell him, which may or may not be true. In the ultimate analysis he relies either upon the
representation of the principal, that is, apparent authority, or upon the representation of the ATTORNEY’S LIABILITIES & OBLIGATIONS TO THE CLIENT
agent, that is, warranty of authority.
The representation which creates "apparent" authority may take a variety of forms of which A. FIDUCIARY DUTY
18
Nocton v Lord Ashburton is a good example of the limitations that a fiduciary relationship
imposes on the attorney. Oliver J in the Midland Bank case found that an attorney’s liability arises in both contract
The fiduciary duties of an attorney include: and tort and thus this case now renders the previous cases of Griffith v Evans [where the
(a) duty of confidentiality- Cannon IV (t) Court held that a solicitor who failed to advise his client in relation to a common law claim for
Bolkiah v KPMG damages where the client had claim under the Workmen’s’ Compensation Act was not
negligent. (Denning L.J. dissented from the majority judgment in this case] and Hall v
(b) duty to avoid conflict of interest Meyrick [where a solicitor failed to advise his clients as to the effect of marriage on a will he
Moody v Cox prepared for them he was held not to have been negligent] of dubious authority.
Demara Bauxite v Hubbard
In the Midland Bank case Justice Oliver (as he then was) held that (1) a duty of care was
(c) not to make secret profit imposed upon the defendant firm of solicitors by reason of the relationship of solicitor and
client existing between the parties, and that the defendants were therefore liable in tort,
(d) act in utmost good faith independently of any liability in contract, for their negligence in omitting to register the option
before a third party had acquired an adverse interest in the farm; and that, since the cause
B. DUTY OF SKILL AND CARE of action in tort did not arise until the damage occurred on August 17, 1967, a date within six
years before the date of the writ, the plaintiffs' cause of action was not statute-barred under
* Canon V (s) In the performance of his duties an Attorney shall not act with the Limitation Act 1939. (2) That since the negligence relied upon was not the giving of
inexcusable or deplorable negligence or neglect. wrong and negligent advice, in which case the breach of contract would necessarily have
arisen at a fixed point of time, but was a simple nonfeasance, the duty of the defendant firm
At common law an attorney contracts with his client to be skilful and careful in the of solicitors to register the option continued to bind them until it ceased to be effectively
performance of his duties and the standard of care to be applied is that of the ‘reasonably capable of performance on August 17, 1967, and therefore, since the action against the
competent attorney’. defendants in contract was not statute-barred, they were also liable to the plaintiffs in
contract
While the attorney is not expected to have a perfect knowledge of the law he is expected to
have a sound knowledge of its cardinal principles for example the various statues of At common law a failure by the attorney to observe reasonable standards of care and skill
limitation. would attract civil liability but the common law traditionally distinguishes such a failure from
the kind of dishonourable conduct which would attract the attention of the disciplinary
In Fletcher v Jubb [1920] 1 K.B. 275 Scrutton L.J observed at pg 251 that while it was not authorities. In Diggs-White v Dawkins (1976) 23 W.I.R. 107 where Justice Graham-Perkins
the duty of the solicitor to know: “the contents of every statute of the realm there are some observed that: “while the findings of the disciplinary committee point unmistakably to sorry
statutes which it is his duty to know” and statutes of limitation clearly fall within that category. lack of skill in the appellant, I would hold that the incompetence demonstrated by him cannot
In that case, a solicitor instructed by a client to make a claim against a corporation for a in the circumstances of this case be held to amount to professional misconduct.” In that
neglect or default in the execution of a public duty or authority is bound to know the case the appellant was retained to file a divorce petition and the petition filed was defective.
provisions of s. 1 of the Public Authorities Protection Act, 1893, and to bear them in mind at The appellant made an unsuccessful attempt to amend the defective petition then did
all material times, and to inform his client if the period is running out during which an action nothing further and the respondent then filed a complaint against the appellant to the
may be commenced. If he loses sight, and allows his client to lose sight, of the provisions of General Legal Council. On appeal the C.A. held that a finding of gross neglect or negligence
that section so that the claim is barred, the solicitor is guilty of negligence. did not amount to misconduct in a professional respect within the meaning of Section 12(1)
of the Legal Profession Act.
In Kitchen v Royal Air Force Association [1955] 2 All E.R. 241 an action against a
solicitor was described by Evershed M.R. as: “always a matter of special anxiety to the court The Canons were amended in 1978 to include Canon IV (s) which provides that in the
for to some extent inevitably our system and profession of law is impugned and its adequacy performance of his duties an attorney shall not act with inexcusable or deplorable
and competence challenged.” In that case the claimant solicitors failed to issue a writ in negligence or neglect. If follows from this that gross negligence on the part of the attorney
time.

19
will not only be actionable at law but will also be punishable upon proof by the relevant as being likely to be injured by their failure to carry out the testator's instructions;
disciplinary body. secondly, there was a breach of that duty of care; and thirdly, the beneficiary had in the
result suffered loss; that accordingly, the solicitors were in breach of a duty of care
towards her (3) That there were no considerations to negative or to reduce or limit the
DUTY OF SKILL & CARE TO THIRD PARTIES scope of the solicitors' duty and it was immaterial that the beneficiary had not relied on
their skill, for it was not a case where such reliance was essential to liability: that further,
In the old leading case of Robertson v Fleming (1861) in which sureties for a debtor the fact that the beneficiary's claim was for financial loss only was no bar to liability,
brought an action against the solicitor whose negligence had made the documentation particularly since the negligence affected her individually and not as a member of an
prepared for the protection of their position ineffective Lord Campbell L.C. likened the unascertained class; that accordingly, the beneficiary ought to recover by way of
argument on behalf of the sureties in completely dismissive terms to that of a disappointed damages the benefits under the will to which she would otherwise have been entitled, and
legatee under a will; “ If this were a law a disappointed legatee might sue the solicitor the court would so hold.
employed by a testator to make a will in favour of a stranger whom the solicitor never saw or
before heard if the will were void for not being properly signed and attested. I am clearly of The decision in Ross v Caunters was met with general approval as describing a practical
the opinion that this is not the law of Scotland or of England and it can hardly be the law of result which provided a remedy to the disappointed beneficiary who on these facts was the
any country where jurisprudence has been cultivated as a science.” only person who suffered a loss as a result of the solicitors’ negligence. The decision was
nevertheless criticized in some quarters as giving rise to a number of conceptual difficulties
Despite this authoritative dictum in the case of Ross v Caunters [1979] 3 All E.R. 580 a which are fully set out by Lord Goff in his judgment in the subsequent case of White v
case in which a gift in a will failed because through the negligence of the testator’s solicitors Jones [1995] 1 All E.R. 698 – 701 where Lord Goff summarizes the difficulties as follows:
the will was not duly attested Megarry V.C. held that the disappointed beneficiary under the
ineffective will was entitled to recover damages from the solicitor in negligence. This was a 1) an attorney acting on behalf of a client owes a duty of care to the client only
result the judge thought of the great developments in the law of negligence in the more than which is primarily contractual though it can also arise concurrently in tort.
100 years since Robertson v Fleming in particular decisions such as Donoghue v 2) the disappointed beneficiary’s claim is for damages for negligence and as a
Stevenson and Hedley Byrne v Heller and cited with approval the Midland Bank v Hett general rule liability for pure economic/financial loss can only arise in contract
Stubbs Kemp case. apart from cases of assumption of responsibility under the Hedley Byrne
principle. See also Caparo plc v Dickman [1990] 2 A.C. 605 – which
In the Ross v Caunters Solicitors who prepared a will for a testator and sent it to him for emphasized foreseeability, proximity and the additional criterion of fairness and
execution failed to warn him that the will should not be witnessed by the spouse of a reasonableness as the true test of liability for negligence in the modern law.
beneficiary. When the testator signed the will, one of the witnesses was the husband of a 3) The Ross v Caunters principle gives rise to potential liability on the part of
residuary beneficiary under it. After the testator's death the solicitors wrote to the solicitors to an indeterminate class of plaintiff including persons disappointed as
beneficiary referring to a possible defect in connection with the witnessing of the will and a result of an ineffective or failed inter vivos transaction which takes us back to
enclosing a copy of section 15 of the Wills Act 1837 which provided that where a Robertson v Fleming.
beneficiary or a spouse of a beneficiary attested a will, the gift to that beneficiary was
void. The beneficiary claimed damages against the solicitors for negligence in respect of In White v Jones the facts of that case posed the problem in rather an acute form. The
the loss of the benefits given to her by the will. The solicitors admitted that they had been testator had two adult daughters with whom he had a fuss. As a result of the fuss he
negligent but contended that the only duty of care which they owed was to the testator changed his will and in effect cut them out of the will but the testator changed his mind and
alone and that they had owed no such duty to the beneficiary. gave instructions to his solicitors to make a new will giving gifts of ₤ 9,000 to the daughters
The court held (1) that, on the authorities, there was no longer any rule that a solicitor each his previous vexation having subsided. Due to admitted negligence the solicitors did
negligent in his professional work was liable only to his client in contract, for he could also not carry out these instructions before the testator’s untimely death as a result of which the
be liable for the tort of negligence not only to his client but to others where a prima facie daughters did not receive the expected gifts and therefore each brought an action against
duty of care towards them could be shown (2) That, on the facts, the three fold elements the solicitors to recover their ₤ 9,000. By a majority the H.L held that the daughters were
of the tort of negligence existed, in that the beneficiary was someone to whom the entitled to recover not solely on the basis that damage to them was a reasonably
solicitors owed a duty of care as being a person within the solicitors' direct contemplation foreseeable consequence of the solicitors negligence (Ross v Caunters principle) but

20
primarily on the basis that by accepting instructions in these circumstances to prepare the right of survivorship the property vested in the nephew and thus the purported gift to the
new will the solicitors had assumed responsibility to the client i.e. the testator and by niece by will failed.
extension to the intended beneficiaries and was therefore liable under the Hedley Byrne
principle.
THE LIABILITY OF AN ATTORNEY ACTING AS AN ADVOCATE TO THIS CLIENT
By this means the principal objection to Ross v Caunters i.e. the absence of a contractual
relationship and no liability in negligence for pure economic loss were effectively The well known-decision in Rondel v Worsley [1969] 1 A.C. 191 confirmed the long
circumvented so as to provide a remedy to a disappointed beneficiary in circumstances in established rule that a barrister was immune from any action for negligence brought by his
which there might otherwise have been none. client in respect of his conduct and management of a case in court and this immunity
applied whether the case was civil or criminal. Different justifications for this rule were to be
In Hemmens v Wilson-Browne [1993] 4 All E.R. 826 the Court held that a solicitor might found in the cases that came before Rondel v Worsley but in the end in Rondel v Worsley
be held to owe a duty of care to the intended beneficiary of an inter vivos transaction who the H.L. held that this was a rule based on the requirements of public policy and in this
had suffered damage which it was beyond the power of the settlor to put right, but that a regard three factors were thought to be the most important.
duty of care could not be said to exist in all cases of inter vivos transactions; that, although it a) the administration of justice requires that an advocate should be able to perform
was foreseeable that by failing to exercise due care the solicitor might cause the plaintiff his duties to his client fearlessly and independently while at the same time
loss and there was a sufficient degree of proximity between them, it was not fair, just or discharging his obligations to the court which is generally regarded as a higher
reasonable to give her a remedy against him since the settlor remained capable of fulfilling duty than that to the client.
his original intention and retained a remedy in contract against the solicitor if he chose to b) An action against an advocate for negligence will ordinarily involve a re-trial of
exercise it; and that, although the plaintiff had suffered a loss by reason of the solicitor's the original action with the result of prolonging litigation which is contrary to the
misstatement as to the effect of the document in that she had been deprived of the public interest and with the result also that there may be two inconsistent
opportunity of having an effective document executed, it would not be fair, just or reasonable decisions on the same point.
in the circumstances to impose on the solicitor a duty of care to the plaintiff because he had c) A barrister is under a professional obligation to accept any brief which is offered
on the same occasion advised her to consult her own solicitors about the effect of the to him and it is not therefore in the public interest to answer charges of
document. In that case a settlor had required the defendant solicitor to draft a document negligence in those circumstances.
giving an enforceable right to the claimant. The document was duly drafted and the solicitor
told the claimant to consult his own solicitors if he had a problem with the document. It was Rondel v Worsley did not make the attorney immune from actions for negligence in respect
common ground that the document as drafted gave the claimant no enforceable right. of every aspect of professional work. The immunity was limited to matters arising from the
conduct and management of the case in court as well as pre-trial matters such as the
However in Carr-Glynn v Freasons [1998] 4 All E.R. 225 a case which was subsequent to drafting of pleadings etc. Some of the judges expressly said that it didn’t extend to purely
Hemmens v Wilson-Browne the Court of Appeal held that a solicitor's duty to a testator to advisory work such as the rendering of opinions and the drafting and revision of documents.
take care to ensure that effect was given to his testamentary intentions included a duty to an What the case did not settle however the precise ambit of the phrase was ‘conduct and
intended beneficiary to ensure that the beneficiary received what the testator intended him management of the case’. This was the subject of the decision a few years later in the case
to receive; that a beneficiary's cause of action against a solicitor existed independently of of Saif Ali v Sydney Mitchell and Co [1978] 3 All E.R. 103 in which it was held that the
and was complementary to any cause of action which the estate might have; that a immunity from suit extended only to those matters of pre-trial work which were so intimately
competent solicitor, acting reasonably, would have advised the testatrix of the need to serve connected with the conduct of the case in court that they could fairly be said to be
a notice of severance in conjunction with the execution of the will; and that the defendants' preliminary decisions affecting the manner in which the case would be presented in court.
failure to do so constituted a breach of duty giving rise to a cause of action entitling the
plaintiff to such damages as would put her in the position in which she would have been had In that case the House of Lords held that in principle those who undertook to give skilled
effect been given to the testatrix's intentions.” In this case the testatrix executed a will by advice were under a duty to take reasonable care and skill, and that a barrister's immunity
which she bequeathed to her niece a share in a property which she was a joint tenant with from suit for negligence in respect of his conduct of litigation on the ground of public policy
her nephew. The testatrix died without having severed the joint tenancy and thus per the was an exception and applied only in the area to which it extended; that the immunity was
not confined to what was done in court but included some pretrial work but that the
21
protection should not be given any wider application than was absolutely necessary in the decided against him is ordinarily likely to be struck out as long as the criminal conviction still
interests of the administration of justice and each piece of pre-trial work had to be tested stands.’
against the one rule, namely, that the protection existed only where the particular work was
so intimately connected with the conduct of the cause in court that it could fairly be said to
be a preliminary decision affecting the way that cause was to be conducted when it came to PRIVILEGE
a hearing.
All of the Canons of Ethics make the duty to keep a client’s confidences secret a
Furthermore, the House of Lord held that on the basis that on the assumption that the professional obligation. Canon IV (t) of the Jamaican Canons provides as follows:
factual basis of the allegations of negligence was correct the acts complained of did not (t): an attorney shall not knowingly reveal a confidence or secret of his client or use a
come within the above rule, and that, accordingly, there was no justification for striking out confidence or secret of his client to the client’s disadvantage, or to his own
the third party claim by the solicitors against the barrister. All of this demonstrates that by advantage or to the advantage of any person unless it is done with the consent of
the time of the decision in Saif Ali the principle of immunity was sitting uneasily with the the client after full disclosure.
general movement in the law of negligence according to which all other professionals who Provided however, that an attorney may reveal confidences or secret necessary to
held themselves out as possessing certain skills were held accountable for their failure to establish or collect his fees or to defend himself or his employees or associates against an
adhere to acceptable standards of care and skill. In Saif Ali itself Lord Diplock had accusation of wrongful conduct.
expressed some dissatisfaction with the fact that the court had not had the benefit of a more
radical submission that the immunity ought to be abolished completely.
The most authoritative rationale for the rule of legal professional privilege is that of Lord
The effect of Rondel v Worsley has been codified in Antigua, Barbados, St. Lucia, Guyana Taylor in R v Derby Magistrates Court [1995] 4 All E.R. 526: “The principle which runs
and Trinidad and Tobago and those statutes provide that an attorney is immune from through all these cases is that a man must be able to consult his lawyer in confidence since
actions for negligence arising out of the conduct and management of a case in court. otherwise he might hold back half the truth. The client must be sure what he tells his lawyer
However, in both Jamaica and Belize the matter continues to be governed by the common in confidence will never be revealed without his consent. Legal professional privilege is thus
law so that assuming that the public policy considerations which informed Rondel v Worsley much more than an ordinary rule of evidence limited in its application to the facts of a
are taken to be the same that decision is likely to be treated as authoritative in those particular case. It is a fundamental condition on which the administration of justice as a
jurisdictions. whole rests. It is not for the sake of the appellant alone that the privilege must be upheld it is
in the wider interest of all those hereafter who might otherwise be deterred from telling the
Despite Lord Diplock’s comments in Saif Ali, the common law immunity was to remain intact whole truth to their solicitors.”
for another 20 years until it was considered again in 2000 by a seven judge panel of the
House of Lords in the case of Arthur Hall and Co v Simons [2000] 3 All E.R. 672. In that The privilege remains even after the occasion in respect of which it came into existence is
case it was held unanimously that the requirements of public policy in England no longer passed. The privilege is the same whether the documents involved are to be used in civil or
dictated that advocates should enjoy immunity from suit for negligence in respect of civil criminal proceedings. The refusal of the client to waive his privilege for any reason cannot
proceedings and by a majority of 4 to 3 it was also held that the immunity in respect of be questioned or investigated by the court. Save in cases where the privileged
criminal proceedings should also be abolished. The overall result of that is that Rondel v communication is used as a means of carrying out a fraud the privilege is absolute. ‘Once
Worsley no longer represents the law, however the court was careful to say that it is not that the privilege comes into existence the lawyer’s mouth is shut forever.’ The privilege belongs
Rondel v Worsley was wrongly decided at the time but as Lord Hoffman observed at page to the client and not to the lawyer and so it follows that it may be waived by the client but not
704 the world was different then and even then it was recognized that public policy was not by the lawyer without the client’s consent.
immutable. Read the judgments of Lords Steyn and Hoffmann. The minority in Arthur Hall
who would have retained the immunity in criminal cases felt that public policy still required The only real exception to the rule at CL against legal professional privilege is that
retention of the immunity because of the fear that its removal could result in effectively two documents/communication which come into existence for the purpose of facilitating or
inconsistent results arising out of the same set of facts. However as Lord Browne-Wilkinson perpetuating a fraud are not privileged. In R v Cox & Railton (1884) 14 Q.B.D 153. the
pointed out at page 686: ‘an action by which a person seeks to re-litigate issues already Court held that all communications between a solicitor and his client are not privileged from
disclosure, but only those passing between them in professional confidence and in the
22
legitimate course of professional employment of the solicitor. Communications made to a In B v Auckland District Law Society [2004] 4 All E.R. 469 the Privy Council held that (1)
solicitor by his client before the commission of a crime for the purpose of being guided or legal professional privilege was a fundamental condition of the administration of justice
helped in the commission of it are not privileged from disclosure. which could not be overridden at common law by or balanced against any competing public
interest or right to compel production; that it could only be overridden in a statute by clear
In Three Rivers District Council v Bank of England [2004] 3 W.L.R. at page 1274 the words or necessary implication; that section 101 of the 1982 Act did not exclude it expressly
House of Lords held that it was desirable as a matter of public policy that communications and it was not a necessary implication from the terms of that section read in conjunction with
between clients and their lawyers for the purpose of obtaining legal advice should be sections 126 and 127 of that Act; and that, accordingly, legal professional privilege was a
privileged from discovery notwithstanding that as a result cases might have to be decided in good answer to a requisition under section 101(3); (2) that where a privileged document was
the absence of relevant probative material; that "legal advice" extended to advice as to what disclosed for a limited purpose it did not follow that the privilege was waived generally or lost
should prudently and sensibly be done in a "relevant legal context", which would include the altogether; that whether the firm's claim to recover the documents already disclosed and to
presentation of a case to an inquiry by someone whose conduct might be criticized by it; and prevent their further use by the law society was based on a common law or equitable right,
that, accordingly, communications between the Bank's inquiry unit and its lawyers regarding the policy considerations which gave rise to the privilege precluded the court from
presentation of its case to the inquiry for the purpose of persuading it that its discharge of its conducting a balancing exercise based on some countervailing public interest; and that
public law obligations under the Banking Acts was not deserving of criticism and had been since the documents were disclosed on the express basis that privilege was not waived,
reasonable were privileged . there was no legal basis on which the society could retain and use the documents once the
The distinction between legal advice privilege and litigation privilege [communication firm's consent had been withdrawn.
between lawyer/client and third parties which come into existence for the purposes of
pending/contemplated litigation] is also addressed in this case. N.B. The absolute and unqualified nature of this privilege was considered in an unreported
ja case in which while defence attorney was xxn defence witn in a carnal abuse case, in the
In AG of Canada v Lavalee, 216 DLR 257, Arbour J “ it is critical to emphasize that all info presence of the jury, the CJ demanded to see the instructions given to the defence attorney
protected by the solicitor/client privilege is out of reach for the state. It can not be forcible by his client. After perusing the instructions the Cj showed it to the pros. despite the strong
discovered or disclosed and it is in admissible in court. It is the privilege of the client and the objection of defence counsel. Bar Ass. spoke strongly about this.
lawyer acts as a gate keeper ethically bound to protect the privilege info that belongs to his
client. Therefore any privilege info acquired by the state w/o the consent of the privilege PROFESSIONAL DISCIPLINE
holder is info the state is not entitled as a rule of fundamental justice”.
The Supreme Court has an inherent jurisdiction to admit or remove a person from the Roll of
Scope of the privilege Attorneys-at-Law. In Re Sinanan the Court of Appeal of Trinidad held that the judges of the
In Balabel v Air India [1998] 1 Ch. 317 Lord Taylor had suggested that for legal advice Supreme Court have long been entitled and empowered to admit barristers to practise in
privilege to attach there must be as between the lawyer and the client a ‘relevant legal Trinidad and Tobago and incidental thereto to suspend or prohibit them from so practising.
context’ and what he meant by that was that purely social interaction between lawyer and A-G of the Gambia v N’jie ([1961] 2 All ER 504, [1961] AC 617, [1961] 2 WLR 845, 105 Sol
client is not purely covered by the privilege. Lord Scott’s illustration in the Three Rivers case Jo 421, PC, 43 Digest (Repl) 430, 4552) explained and applied; (ii) the fact that the judges
at paragraph 42 of a client who is seeking advice as to how to join a private club is of the Supreme Court had never themselves sought, or been invited in the past to exercise,
particularly important since it shows the parameters of ‘a relevant legal context.’ Lord Scott any disciplinary power over barristers, did not denude them of the right and power so to do;
was also quick to point out that borderline cases will turn on the judge’s interpretation of the (iii) the barrister should be prohibited from practising in Trinidad and Tobago and his name
relevant legal context. struck off the roll of barristers of the Supreme Court. This was a case where a barrister had
been convicted of the offence of fraudulent conversion and the A.G. moved the Court for an
See also R v Special Commissioners of Income Tax (the Morgan Grenfell case) [2002] order that the barrister be struck off the Roll of practicing attorneys and the appellant
3 All E.R. 1 in which Lord Hoffmann held that legal professional privilege was a fundamental appealed on the basis that the Supreme Court had no such power.
human right long established in the common law that could be overridden only by express
words or necessary implication. In Myers v Elman [1940] A.C. 282 Lord Wright at page 319 stated as follows:
“The term professional misconduct has often been used to describe the ground on
which the Court acts. It would perhaps be more accurate to describe it as conduct
23
 which involves a failure on the part of the solicitor to fulfill his duty to the Court and to conduct must be inexcusable and such as to merit reproof. Mere negligence, mistakes and
realize his duty to aid in promoting in his own sphere the cause of justice. This errors of judgment would not generally suffice.
summary procedure may often be invoked to save the expense of an action. This it
may in proper cases take the place of an action for negligence, or an action for In the Commonwealth Caribbean with the exception of the Bahamas, Jamaica and to limited
breach of warranty of authority brought by the person named as defendant in the extent Trinidad and Tobago and St. Lucia the punitive jurisdiction of the courts has not been
writ. The jurisdiction is not merely punitive but compensatory. The order is for delegated and it is still exercised exclusively by the court although in both Barbados and
payment of costs thrown away or lost because of the conduct complained of. “ Belize there is a limited fact-finding delegation of authority to a disciplinary committee and to
the General Legal Council respectively. In those two countries however a finding of the
In that case the House of Lords held that in a case where a solicitor has entrusted his Committee/Council must be reported to the court with recommendations which may be
managing clerk with the preparation and filing of affidavits and these were improperly given effect to by the court.
prepared the solicitor was guilty of misconduct and personally liable to pay the costs of the
proceedings. A solicitor cannot simply allow the client to make whatever affidavit he thinks fit
and cannot escape the responsibility of careful investigation or supervision. Moreover, a
solicitor who has innocently put upon the file an affidavit by his client which he subsequently Professional discipline in Ja
discovers to be false he owes a duty to the Court to put the matter right at the earliest The relevant provisions are to be found at Sections 11-20 of the Legal Profession Act and
moment if he continues to act as the solicitor on Record. Section 11 provides for the appointment of a Disciplinary Committee which generally
In Re Grey [1892] 2 Q.B. 440 the Court of Appeal [Lord Esher M.R.] held that where a speaking is made up of attorneys who have been in practice for ten (10) years or more and
solicitor has committed a breach of professional duty in failing to pay over money received the constitution of that Committee is governed by the Third Schedule to the Act and the
by him for his client, the fact that the client has brought an action against him and recovered conduct of disciplinary proceedings is governed by the Fourth Schedule to the Act.
judgment for the money does not take away the disciplinary jurisdiction of the Court
summarily to order payment of the money to the client. As you know, the GLC pursuant to the Legal Profession Act has prescribed Canons of
Professional Ethics pursuant to which certain breaches are deemed to constitute
Notwithstanding the inherent jurisdiction the modern tendency in the common law world has professional misconduct and it is these Canons which basically govern the conduct of
been to systematize the disciplinary function by the establishment of disciplinary bodies proceedings before the Disciplinary Committee.
such as the Solicitors Disciplinary Tribunal in England or the Disciplinary Committee in
Jamaica to exercise powers of discipline over the profession in accordance with detailed See the Third Schedule of LPA-you will see the rules which govern the operation of the
rules of conduct and procedure. While it is clear that the judges continue to enjoy their Disciplinary Committee and the powers of the Committee are in the Act itself where it can
inherent powers of discipline in any jurisdiction in which a disciplinary code is in fact in strike off, fine, make orders for restitution.
existence it would be considered inappropriate save for cases of contempt of court or other
exceptional cases for a judge to exercise his punitive jurisdiction over an attorney of his own See McCallaugh v Disciplinary Committee (1994) 49 WIR 213 (CA); Privy Council case is
motion. at (1998) 53 WIR 272 (PC). One of complaints in McCallaugh – acts allowed one of
members to bring complaint and in bringing complaint he did so as Chairman of the council
In R. & T Thew v Reeves [1982] 3 All E.R. 1086 at page 1088 Lord Denning M.R. was of and the complaint was null and void and the PC said that to be chairman he had to be a
the view that the jurisdiction of the Supreme Court over solicitors as officers of the Court is member of the council and his chairmanship was merely a statement of his capacity
both punitive (in which case it can strike a solicitor’s name off the roll or suspend him) and
compensatory (in which case it can order a solicitor to pay the costs of his own client, those Whether the Disciplinary Committee in Jamaica has jurisdiction over a Jamaican lawyer who
of the opposite party of those of both). However, in so far as it is punitive it is usually is practicing in Canada (did the Disciplinary Committee have extra-territorial jurisdiction).
inappropriate for the Court to exercise the jurisdiction of its own motion such matters being The PC issue- the impact of delay in the time; Disciplinary Committee sought to punish the
reported to the Disciplinary Tribunal. In so far as the jurisdiction is compensator however it is attorney; whether after this delay there could be a fair hearing. Whether the requirements in
retained by the Court itself and the Court may act on its own motion or on the application of Section 12 of the Act that the complaint should be laid and supported by an affidavit sworn
the party who has incurred useless costs as a result of the conduct of the solicitor of which to by the person aggrieved precludes those steps being taken on behalf of the ‘person
the complaint is made. However to warrant the exercise of the jurisdiction the solicitor’s aggrieved’ by his or her duly appointed agent.

24
 Finally, in the case of Campbell v Hamlet [2005] 3 All E.R. 1116 at page 1121, Lord
See Barrington Frankson v General Legal Council, PC Appeal No. 8/ 2005 judg. Browne sitting in the Privy Council in a case from Trinidad and Tobago laid down
delivered 27th July 2006. The complaint and affidavit in support were actually signed by the emphatically that: “the criminal standard of proof is the correct standard to applied in all
son of the client on here behalf. There was no question that the son was duly authorized by disciplinary proceedings concerning the legal profession”. Thus if the decision in Bhandari v
the mother not only to make the complaint but to also giver evidence on her behalf. The Advocates Committee(supra) was thought to have set out a lesser standard then that
Jamaican CA held that Section 12 of the Act was mandatory and required that the affidavit decision ought not to be followed.
in support of the claim be sworn to by the complainant herself. As a result, the proceedings
before the Disciplinary Committee were a nullity and had to be reconstituted. On appeal to
the PC, the GLC’s appeal was allowed and it was held that unless the words of the statute THE NATURE OF THE MISCONDUCT ALLEGED
were such as were to require that a document be made or an act be done by a person
himself, the general principle applies that whenever a statute gives someone the right to In Re Weare [1893] 2 Q.B. 439 it was held that a solicitor might be struck off the Roll for
invoke some legal procedure by giving notice or taking some other formal step, he may do commission of a criminal offence which has no relation to his character or conduct; as a
so either in person or by a duly authorized agent for that purpose. solicitor the true test being whether the offence is such as to make the guilty person unfit to
remain a member of the profession. The Court of Appeal also went on to hold that conviction
Before the passing of the Legal Profession Act, matters of discipline were dealt with by the for a criminal offence prima facie makes a solicitor unfit to continue on the roll; but the Court
court in the exercise of its inherent jurisdiction [Re Browne (1972) 19 WIR 1]. Section 18 of has a discretion and will inquire into the nature of the crime and will not as a matter of
the L.P.A. in Barbados establishes a Disciplinary Committee of the Bar Association which course strike him off because he has been convicted. However in the instant case the Court
considers allegation of professional misconduct. The Committee’s conclusions are considered that the solicitor’s (as landlord), in allowing houses to be used as brothels was
forwarded with an appropriate recommendation to the Court of Appeal and the Court of such that the solicitor ought to be struck off the Roll.
Appeal in its turn allows the attorney to show cause why the recommendations of the
committee should not be implemented. In the case of Re Eastmond (1995) 50 WIR 76 Mr. Re A Solicitor [1960] 2 All ER 621 – it is not conviction of every type of offence which could
Justice Frederick Smith pointed out that hearings before the Disciplinary Committee are in be said to amount to conduct unbecoming of a solicitor and that a conviction of, for instance,
the nature of a trial and that the Committee should accordingly follow the procedure of a trial minor offences such as parking offences might not amount to conduct which tended to bring
as far as is practicable. the profession into disrepute.. In that case, however, the conduct of the solicitor convicted
of insulting behaviour was held to be conduct unbefitting of a solicitor.
In Re Niles (1993) 47 WIR 38 the Court of Appeal held that N had been given every
opportunity of informing the committee of anything that he wanted to say; in all the To some extent in Jamaica the question of what kind of conduct amounts to professional
circumstances it was impossible to say that the committee was wrong to have proceeded misconduct has been simplified by the Canons of Ethics by which certain types of breaches
with the hearing in N’s absence on 2 September. are deemed to be misconduct in a professional respect. The Legal Professional Prescribed
Offences Rules (1998) also prescribes certain offences conviction for which may attract
disciplinary action pursuant to Section 12(1) (b) of the Legal Profession Act. In Abraham v
THE STANDARD OF PROOF Jutsun [1963] 2 All E.R. 402 Lord Denning at page 404 stated as follows:
In the case of Bhandari v Advocates Committee [1956] 3 All E.R. 742 at pages 744-745 “An advocate is not to usurp the province of the judge. He is not to determine what
the Privy Council held that wherever on an allegation of professional misconduct an element shall be the effect of legal argument. He is not guilty of misconduct simply because
of deceit or moral turpitude was involved a high standard of proof is called for and not a he takes a point which the tribunal holds to be bad. He only becomes guilty of
mere balance of probabilities. In the later case of Re A Solicitor [1992] 2 All E.R. 335 at misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby
page 344 Lord Lane C.J. commented that: “it is not altogether helpful if the burden of proof deceives the court.”
is left somewhere undefined between the criminal and civil standards” and the court went on
to hold that where what is alleged against the lawyer is tantamount to a criminal offence the Generally speaking a person who makes a submission based on his instructions cannot be
tribunal should apply the criminal standard. regarded as having committed an act of professional misconduct save for cases in which
there is a deliberate attempt to mislead the court.

25
THE HEARING The court took this period as being relevant as opposed to the actual laying of the charge
We noted the observations of the Court of Appeal of Barbados in Re Eastmond as to the [1990] and commencement of the hearing[1992]. The Privy Council however, expressly
need for a disciplinary committee hearing to be properly structured and to adhere generally reserved comment on whether the relevant period was the same with respect to the
to the format of a trial. Section 7(3) of the Third Schedule to Legal Profession Act provides constitutional guarantee of a fair hearing within a reasonable time [Section 20(2)]. In the
that the committee has the power to regulate its own proceedings and in Re a Solicitor result a stay of proceedings was granted by the Privy Council with regard to some of the
[1992] it was held that a similar provision in the English Rules permitted a tribunal to “use complaints against the attorney in respect of which it was felt that there was a probability of
evidence which might in strict law be inadmissible”. Therefore in that case it was held that prejudice by the delay but not with regard to others in respect of which it was thought that
the tribunal was within its power to make use of evidence of what had taken place in similar there was no possibility of prejudice.
proceedings against the solicitor in Australia although such evidence was strictly speaking
hearsay. The right of an attorney to a fair hearing before the committee is same as that of a
parties to proceedings in the ordinary courts of the land and in the case of Aris v Chin
(1972) 19 WIR 459, 472 an appeal from an order of the Committee striking an attorney off
the Roll of Attorneys was allowed in a case in which the attorney had presented a medical
certificate in support of an application for an adjournment of the proceedings which was THE OBJECTS OF PUNISHMENT IN DISCIPLINARY CASES
refused. The Court of Appeal held that in the circumstances he had been denied a fair
hearing and Smith J.A. who delivered the leading judgment for the majority observed that In Bolton v Law Society [1994] 1 W.L.R. 512 at page 520 Lord Bingham M.R. stated as
the fact that the attorney faced the loss of his profession by an adverse decision was a follows:
relevant consideration in determining whether he had been treated fairly or not. The “It is important that there should be full understanding of the reasons why the tribunal makes
circumstances of each case will require careful consideration and Aris v Chin may be orders which might otherwise seem harsh. There is, in some of these orders, a punitive
contrasted with Re Niles (supra) which was a case in which no medical certificate was element: a penalty may be visited on a solicitor who has fallen below the standards required
produced in support of an application for an adjournment by the attorney and the Court of of his profession in order to punish him for what he has done and to deter any other solicitor
Appeal of Barbados upheld the committee’s refusal to grant an adjournment to the attorney tempted to behave in the same way. Those are traditional objects of punishment. But often
who on the facts had been given every opportunity to inform the committee of his position on the order is not punitive in intention. Particularly is this so where a criminal penalty has been
the allegations against him. imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it
would be unjust, to punish him again. In most cases the order of the tribunal will be primarily
In the case of Hall v Bermuda Bar Council (1982) 33 WIR 69 it was held that the fact that a directed to one or other or both of two other purposes. One is to be sure that the offender
member of the Bar Council which was the prosecuting body sat in a judicial capacity on the does not have the opportunity to repeat the offence.
disciplinary tribunal would raise a suspicious bias in the mind of a reasonable bystander
even though the Court of Appeal was at pains to point out that there was no suggestion of This purpose is achieved for a limited period by an order of suspension; plainly it is hoped
actual bias. Therefore that decision turns on the related pair of principles that no man should that experience of suspension will make the offender meticulous in his future compliance
be a judge in his own cause and justice should not only be done but should be manifestly with the required standards. The purpose is achieved for a longer period, and quite possibly
seen to be done. Read the judgment of DaCosta J.A. at pages 90-97 of that report. indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to
maintain the reputation of the solicitors' profession as one in which every member, of
The Privy Council in McCalla v Disciplinary Committee (supra) confirmed that there is whatever standing, may be trusted to the ends of the earth. To maintain this reputation and
power under the common law to stay proceedings where there has been such delay in sustain public confidence in the integrity of the profession it is often necessary that those
bringing a charge or complaint before a court or tribunal that a hearing of the matter would guilty of serious lapses are not only expelled but denied re-admission. If a member of the
result in substantial prejudice to the person against whom the charge or complaint is public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor,
brought. pending re-investment in another house, he is ordinarily entitled to expect that the solicitor
will be a person whose trustworthiness is not, and never has been, seriously in question.
In McCalla it was held further that for the purposes of this common law power the relevant Otherwise, the whole profession, and the public as a whole, is injured. A profession's most
period of delay to be considered was that between the occurrence of the events which were valuable asset is its collective reputation and the confidence which that inspires.”
the subject of the investigation[1985/1987] and the commencement of the hearing [1992].
26
The Legal Profession Rules (Accounts) (1999) make it professional misconduct for attorneys and restraint. In particular it should not be used to suppress methods of advocacy which are
at law who maintain trust accounts to fail to file annually an accountant’s report. In the case merely offensive or unnecessary.
of attorney’s who do not maintain client’s trust account the regulations permit the filing of a
declaration to that effect in lieu of an accountant’s report. The General Legal Council may Absence from court
direct an investigation of the accounts of an attorney who is suspected of not keeping books
in accordance with the rules. The Regulations do not apply to attorneys who are employed Weston v. Central Criminal Courts Administrator [1977] 1 QB 32
on a full time basis to government or statutory bodies. Late on a Thursday afternoon a solicitor, who had been instructed by a client charged with
a criminal offence and remanded on bail, learned that the case, which was not ready for
trial, had been listed as a "floater" for the Friday. He telephoned the listing officer to say
CONTEMPT OF COURT that he had understood it had been agreed that the case would not be put in the list so
soon, but he was told that it was too late to take it out of the list. The solicitor that same
Introduction evening wrote an offensive letter of protest to the courts administrator and on the Friday
Contempt of court by lawyers is one aspect of the wider law of contempt generally. The test he sent the client to the court by himself. The presiding judge, with the letter of protest
of whether words used or action done in the course of proceedings amount to contempt of before him, fixed the trial for the following Monday. The solicitor was informed of that only
court is whether they are of such a nature as to interfere or tend to interfere with the course by his client, who at the same time put him in funds for the trial. The solicitor made further
of justice. While the action complained of is usually done in the face of court it can also be protest to the courts administrator and also wrote to his client, telling him to go to the court
contempt if things done or said outside of court have the effect of interfering or tending to on the Monday and ask the judge to stand the case out for a date to be fixed by the clerk
interfere with the course of justice. to counsel already instructed for the defence; he also told the solicitors for the prosecution
that the case could not be ready by the Monday.

WHAT DOES NOT AMOUNT TO CONTEMPT On the Monday the client attended, still unrepresented. The judge then presiding, after
being told some of the facts ordered that the solicitor should attend before him on the
Discourtesy Tuesday to explain his conduct. As that direction was communicated to him only by his
client the solicitor did not attend. The judge thereupon issued a bench warrant which by
In Shamdasani [1945] A.C. 264 opposing counsel accused the appellant of misleading the its terms showed that he was treating the solicitor as in contempt of court. He was
court as to the nature of the issues raised in the action, the appellant replied “I do not keep arrested and brought before the judge but was granted an adjournment until the Thursday
anything back, my fault is that I disclosed everything, unlike members of the bar, who are in when he was represented by counsel. After a hearing, during which there were many
the habit of not doing so and misleading the court”. The appellant also stated “It is misunderstandings on both sides and a refusal by the solicitor to apologise for the letter to
customary for the Taxing Masters to write [that, with regards to the allowance of the courts officer, the judge told him that he was in breach of his duty as an officer of the
discretionary items that he had taken into consideration all the matters mentioned] but is it court, and ordered him to pay the costs of the prosecution, limited to ú200, thrown away
really considered at all. He was found guilty of contempt of court based on the two on three days in court.
statements made. On appeal the Privy Council held that he was not guilty of contempt. For On appeal by the solicitor:-
words or action used in the face of the court or in the course of proceedings to be a Held, allowing the appeal and setting aside the order for costs, that the jurisdiction
contempt they must be such as would interfere or tend to interfere with the course of justice. which the judge purported to exercise was not the supervisory jurisdiction of the
An insult to counsel or to the opposing litigant is very different from an insult to the Court court over solicitors as officers of the court which would entitle the court to make an
itself or to members of the jury, though conceivably if a litigant or an advocate used order for costs against a solicitor personally, but was the inherent jurisdiction to
language so outrageous and provocative as to be likely to lead to a brawl in court the punish summarily for contempt of court; and that since there was nothing that the
offence could be said to have been committed. The Privy Council also held that while no solicitor had done to interfere with the due administration of justice or to disobey an
doubt if a litigant were to suggest in court that its officers were corrupt or habitually failed to order of the court, he had not crossed the line dividing mere discourtesy and breach
carry out their duties the court might consider it a contempt though if it were only the latter of duty to a client or the court from contempt.
that was suggested it would be unwise to do so. The Privy Council [Lord Goddard] also
explained that the power to punish for contempt should be used sparingly and with wisdom
27
 Izuora v R [1953] AC 327 makes the point further that it is not every act of discourtesy to The next morning B told the judge that he did not feel competent to conduct his own case
the court by counsel which amounts to contempt of the court, neither is a breach of his duty on contempt and that he understood that the only charge against him was theft. The judge
to his client by counsel necessarily a contempt of court. In this case the Privy Council said that he would not deal with that charge, but committed B to six months' imprisonment
applied Shamdasani cited above and held that in the present case the appellant’s conduct for contempt of court.
was clearly discourteous and might perhaps have been in dereliction of his duty to his client On appeal:-
but could not properly be placed over the line that divided mere discourtesy from contempt. Held, allowing the appeal and setting aside the sentence, (1) that B was not guilty of
In this case the appellant was absent from court in disregard of a direction from the Court criminal contempt of court, since his admitted conduct, though preparatory to carrying out
that he should attend. It is also not a proper use of the power to cite for contempt to attempt an intention and a plan which, if completed, might have been a serious contempt in the
to deflect or to prevent criticisms of judges or the judicial system generally since it is in the face of the court, had not become an attempt to commit the offence at the time when he
public interest that the system should be subject to proper public scrutiny; Lord Atkin in was taken into custody, and a fortiori could not amount to contempt.
Ambard v AG of T&T [1936] A.C. 322 at 335 was of the view that: (2) That the judge, as a judge of a superior court of record, had jurisdiction to make an
“Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and immediate order of committal of his own motion against a person guilty of contempt of
respectful even though outspoken comments of ordinary men.” court; but even if B's admitted acts and intention had amounted to a contempt of court,
the judge should not have punished him as he did by the summary procedure available
In that case the journalist had taken for his theme the perennial topic of inequality of for contempt for that procedure should be used only in exceptional cases where a
sentences, under the text "The Human Element," using as the occasion for his article the contempt was clearly proved and could not wait to be punished; and where a person was
two sentences referred to. He expressly disclaimed the suggestion that one of the already in custody and charged with theft there was no need for immediate imprisonment.
particular judges was habitually severe, the other habitually lenient. There the Privy
Council held that no wrong is committed by any member of the public who exercises
freely the ordinary right of criticizing temperately and fairly and in good faith in private or in WHAT AMOUNTS TO CONTEMPT
public any episode in the administration of justice. This is subject to the proviso that said
members of the public abstain from imputing improper motives to those taking part in the In Vidyasagara v The Queen [1963] AC 589 PC
administration of justice and a genuinely exercising a right of criticism and not acting in The appellant, who appeared as counsel for the union, read a statement as follows: "... In
malice or attempting to impair the administration of justice. the circumstances the union having felt that this court by its order had indicated that an
impartial inquiry could not be had before it has appealed to the Minister to intervene in the
Steps preparatory to committing contempt of court matter. The union is therefore compelled to withdraw from the proceedings and will not
consider itself bound by any order made ex parte which the union submits would be
Balogh v St. Albans County Court [1975] 1 QB 75 B, a temporary clerk in a solicitor's contrary to the letter and spirit of the Industrial Disputes Act ..." He then withdrew from the
office, while attending a criminal trial at a Crown Court, devised a plan to enliven the case.
proceedings by releasing nitrous oxide ("laughing gas") down a ventilation duct on the
roof into the trial court. He stole a cylinder of the gas from a hospital lorry and climbed up The appellant, on a complaint by the Industrial Court, was found guilty by the Supreme
on to the roof at night to locate the particular inlet duct. The next morning he left the Court of Ceylon of contempt against or in disrespect of the authority of the Industrial Court
cylinder in his brief case in the public gallery of the court next door (Court 1) from which in making the above statement:-
there was access to the roof, intending to carry out his plan later in the day. Police, who Held, that the appellant was rightly found guilty of contempt. The statement was an act
had seen him on the roof, found his brief case, opened it, and later cautioned B who at calculated to bring the Industrial Court into disrepute and was made without sufficient
once admitted what he had done and planned to do. He was charged with theft of the reason. The appellant was not entitled to any special privilege because he was acting on
cylinder. The police reported the matter to Melford Stevenson J., the senior judge, who instructions, and in reading the statement he accepted responsibility for its contents.
was presiding in Court 1. B was brought before the judge who said that B's admitted There was no justification for his statement that an impartial inquiry could not be expected
conduct was a serious contempt of court and that he would consider the penalty before the Industrial Court - it was deliberate and quite unnecessary in the circumstances.
overnight, B to be kept in custody. Different considerations applied when an attack was made in a court of review on the
impartiality of a lower court - it might be necessary for counsel in compliance with his duty

28
to his client to allege partiality of the lower court - but in the circumstances in which the appellant with contempt of court and sentenced him to seven days’ imprisonment. The
appellant's statement was made no adequate justification existed. formal court order stated that the appellant said that the court was guilty of ‘unjudicial
conduct’ in matters in which he was engaged. In his written reasons for his decision the
Pre-conditions judge stated that the appellant had made a ‘vicious attack on the integrity of the Court’. On
appeal,
1) Attorney should be told of the precise conduct amounting to contempt
2) Attorney should be given the opportunity to show cause why he should not be Held – Where a person was charged with contempt of court particulars of the specific nature
committed for contempt i.e. explain his conduct. of the contempt had usually to be made plain to the alleged contemnor by the judge before
he could be properly convicted and punished. The judge had failed to explain to the
If these two pre-conditions are not satisfied the conviction may be quashed. appellant that the contempt with which he intended to charge him was ‘a vicious attack on
the integrity of the court’. That failure vitiated the appellant’s committal for contempt since
Specific charge must be told to attorney he had not been afforded the opportunity to explain what he had meant by his allegation of
‘unjudicial conduct’. Accordingly the appeal would be allowed.
Because contempt of court is a charge which is tried summarily with the wholly unique
feature of the judge being also the prosecutor as well as a witness it is essential that the
particulars of the specific nature of the contempt alleged should usually be made plain by However in the later case of Frater [1981] 18 JLR 381 it was held by PC that where there
the judge before the person charged can be convicted and punished. Thus in Maharaj v AG was not any room for doubt as to what were the specific acts of counsel complained of and
of T&T [1977] 1 All ER 411 On 2 April 1975 the appellant was engaged as counsel in a for which he was being charged there was no requirement that the precise nature of the
case in the Court of Appeal, Trinidad which was estimated to last five days. The appellant contempt should be brought to his attention. Frater was a case in which counsel was
had also accepted two briefs to appear in another court on 14 April. The appeal lasted until persistent in an objection to questions being asked by the judge of a witness and refused to
15 April and the appellants’ two briefs for 14 April were held by another counsel who made obey judge’s persistent call for him to resume his seat. The Privy Council held that his
an application to the judge that both cases be adjourned for various reasons, including the behaviour amounted to blatant contempt.
appellant’s inability to appear. In both cases the judge refused the application and gave
judgment against the appellant’s clients.
Opportunity to explain
On 15 April the same judge refused an application on behalf of defendants in another action,
who were to have been represented by the appellant, to have the action adjourned because In Re Pershadsingh (1960) 2 WIR 340 the exchange between attorneys amounted to a
the appellant was unable to appear. The judge allowed two doctors to give evidence for the brawl. Resident Magistrate told them to desist if the appellant heard the order of the RM he
plaintiffs in that action and then adjourned it to 17 April. On 16 April the appellant appeared was clearly in defiance guilty of contempt and deserving of punishment, in the absence of
before the same judge in chambers. At that hearing he recited the events of 14 April and any apology or explanation, which the RM may or may not of accepted. However no
asked the judge to disqualify himself from hearing any other cases in which he (the opportunity having been afforded to the appellants to answer or explain and therefore the
appellant) was engaged on the ground that the judge had behaved unjudicially on 14 April. order of the court below rescinded and the appeal allowed
The judge refused.
Contempt does not have to occur in the face of the court as things done out of court may
At the adjourned hearing on 17 April the appellant made an application to the same judge amount to contempt if they tend to pervert the course of justice.
that the two doctors who had given evidence on 15 April be recalled so that he could cross-
examine them. The judge refused. The appellant then repeated to the judge in open court
what he had said to him on the previous day in chambers and stated that he reserved the
right to impeach the entire proceedings. The judge then wrote a note to the appellant which Jurisdiction to commit for contempt of court
stated: ‘Are you suggesting that this court is dishonestly and corruptly doing matters behind
your back because it is biased against you?’ The appellant replied: ‘… I say you are guilty Finally, the power to commit for contempt resides with superior courts. Superior courts have
of unjudicial conduct having regard to what I said yesterday.’ The judge then charged the an inherent power to commit for contempt however lower courts need express statutory

29
power. Nonetheless Section 194 of Judicature (Resident Magistrates) Act gives the RM (i) The Court as well as the Disciplinary Committee of the General Legal Council can
power to commit for contempt of court. enforce any undertaking given by an Attorney-at-Law in his professional capacity
and may take punitive measures against such attorney in respect of its breach.
(ii) The jurisdiction of the Court as well as the Disciplinary Committee in matters of the
professional conduct of members of the legal profession is akin to the special
control which a court exercised at common law over officers of the court so that in
certain cases they may be called upon summarily to perform their undertakings
UNDERTAKINGS even where the contention that they are not liable to perform them is entirely free
from any taint of moral misconduct.
Tesheira defines an undertaking as a pledge or promise made by an attorney in his (iii) Where it is found that an Attorney-at-Law, gave an undertaking in his professional
professional capacity to do or to refrain from doing some act. An undertaking may be given capacity to a third party, he cannot exonerate himself from liability by pleading that
orally as for instance where it is given to the court during the course of proceedings but it he had delegated the performance of such undertaking to another person. In the
should usually be given in writing or subsequently confirmed in writing. The basic principles instant case, assuming the story of the appellant could be believed, it cannot
governing undertakings are as old as the profession itself but they are now captured in brief protect him from liability on the undertakings.
general statements in the Canons of Ethics (iv) The breach of an undertaking by an Attorney-at-Law amounts to professional
misconduct, both at common law and by the present statutory provisions, if the
Canon VI: Attorney is found to have given such undertaking in his professional capacity. In the
- (c): an attorney shall not commit a breach of an undertaking given by him to a judge, instant case, it is clear that the appellant gave the undertaking in his capacity as
a court or other tribunal or an official thereof whether such undertaking relates to an attorney for his client.
expression of intention as to future conduct or is a representation that a particular (v) In order that the court should exercise its penal jurisdiction over an Attorney-at-
state of facts exist Law it is not sufficient to show that his conduct had been such as would support an
- (cc): an attorney shall not knowingly represent falsely to a Judge, a Court or other action for negligence or want of skill. It must be shown that the solicitor had done
tribunal or an official of a Court, or other tribunal, that a particular state of facts something which is dishonourable to him as a man and dishonourable in his
exists. profession. In the instant case, the conduct of the appellant is dishonourable.
- (d): an attorney shall not give a professional undertaking which he cannot fulfill and
shall fulfill every such undertaking which he gives. In United Bank of Kuwait v Hammoud [1988] 3 All ER 418 Lord Donaldson stated that: “I
say nothing about the position of members of the Bar as being immaterial for present
In the case of Morris v General Legal Council (1985) 22 JLR 1 Mr. Justice Carey purposes, but the solicitors’ role is much wider than this. They are, to use an old-fashioned
observed as follows: expression, ‘men of affairs’. The public would be wise to consult them, and does consult
them, when faced with unusual problems which may or may not have hidden legal aspects
“The importance of undertakings in the world of commerce and conveyancing cannot and which do not clearly raise issues within the special expertise of some other profession.
be overemphasized. The practice of attorneys giving undertakings relating to The great, and perhaps unique, value of the professional advice of solicitors is to be found in
certificates of title has been of long standing and the whole business especially of a combination of factors which those who consult them are entitled to expect, and usually
conveyancing will be brought to a halt if parties whether they be attorneys or financial get: total independence, total integrity, total confidentiality, total dedication to the interests
institutions could no longer rely on the word of the member of an honourable of the client, competent legal advice and competent other more general advice based on a
profession.” wide experience of people and their problems, both in a personal and in a business context.
In this case the appellant gave a written undertaking to send the registered title to the The need to maintain this enviable situation is, of course, the reason and justification for the
property the subject of a sale to the Alpart Credit Union. However unknown to the appellant unforgiving attitude adopted by the profession towards those of their number, and there will
the said registered title was removed from the appellant’s office without the appellant’s inevitably be few, who fall below the standards required of them.”
knowledge notwithstanding the fact that the appellant had given instructions that the
registered title be sent to the Alpart Credit Union. The Court of Appeal held: Lord Donaldson also observed that practicing lawyers are prima facie to be taken “to be
men and women of good character whose word is their bond” and whose statements do not

30
require cross-checking or confirmation which might well be required of other persons. It is Upon an application to the court the court may order the attorney to perform the undertaking
for this reason that the law and the judges have always taken a very serious view of the and where it is for some reason impossible for him to do so it may order him to pay
breach of a professional undertaking and there are three ways in which a party seeking to compensation. However this summary jurisdiction is an extraordinary one which will only be
enforce a professional undertaking may proceed: exercised in clear cases failing which the more appropriate course of action might be an
1. By way of an application to the court to enforce the undertaking in the exercise of action in law against the attorney.
its inherent jurisdiction to supervise its officers
2. By an application to the relevant disciplinary committee or other professional In Geoffrey Silver & Drake v Baines 1971 the Court of Appeal (Denning M.R.) held that (1)
body Assuming that the written undertaking was given by the defendant, since it was merely to
3. By an action in the civil court in cases where a cause of action actually exists. In repay money lent it was not an undertaking given by him in his capacity as a solicitor, even
Udall v Capri Lighting Ltd the Court of Appeal was of the view that where a though the money was for the benefit of a client, but was given in his personal capacity, for
solicitor was unable to carry out or procure the performance of an undertaking in regard to money an undertaking given by a person in his capacity as a solicitor was
given by him the court could exercise its inherent supervisory jurisdiction over the usually one to pay money which he held in trust or an undertaking to apply money in a
solicitor, because failure to implement an undertaking prima facie constituted particular way; accordingly, the first requirement for the exercise of the court’s summary
professional misconduct or a serious dereliction of professional duty even though jurisdiction over solicitors for breach of an undertaking was absent; (2) In any event, the
the solicitor may not have acted dishonourably or actual performance of the court’s summary jurisdiction over solicitors should be exercised only in a clear case which
undertaking required action by a third party and was therefore beyond the the present case was not since the issue of B’s implied or ostensible authority to give the
solicitor’s control. Although the court would usually order performance of the undertaking was arguable; accordingly, the case was not an appropriate one for summary
undertaking, where performance was impossible the court could order the procedure and the plaintiff must bring an action at law for the money.
solicitor to pay compensation to any person who had suffered loss because of
the solicitor’s failure to implement his undertaking, provided it was shown that the In John Fox v Bannister King [1987] 1 All ER 732 The Court of Appeal held that the
failure amounted to professional misconduct or serious dereliction of duty. It court’s inherent jurisdiction over solicitors, although summary in nature, was not analogous
followed that the judge had been wrong not to take into account the fact that it to the jurisdiction which it exercised pursuant to RSC Ord 14. Accordingly, where material
was impossible for the solicitor to perform the undertaking or to consider the facts were in issue the court would still exercise its jurisdiction so long as it was satisfied that
possibility of making a compensatory order against the solicitor. Both the appeal on the evidence before it the case against the solicitor had been clearly established. On the
and the cross-appeal would therefore be allowed and the case remitted to the facts, the defendants had made a clear and unequivocal statement to the plaintiffs that they
judge for further consideration. would retain the sum of money, and that statement constituted an undertaking given by the
defendants as solicitors, and as officers of the court they were expected to abide by it. It
The inherent jurisdiction followed that the defendants had breached that undertaking to the plaintiffs in paying the
sum to the client and accordingly they were required to make good the plaintiffs’ loss.
In Myers v Elman Lord Atkin described the disciplinary jurisdiction of the court over However, since the client was bankrupt, it was inappropriate to order the defendants to pay
attorneys as one which has been exercised since time immemorial and in the earlier case of the sum into an account to the client’s credit or to pay the sum into a joint account or into
United Mining & Finance Corp. v Becher [1910] 2 KB 296 Mr. Justice Hamilton placed court. The court would therefore direct an inquiry to determine the actual loss sustained by
the jurisdiction to enforce undertakings in the context of that higher standard of conduct the plaintiffs, and any loss so established was to be made good by the defendants. In
expected from attorneys which justified the exercise by the court of this special summary Rooks Rider v Steel [1993] 4 All ER 716 the Court held that it was professional misconduct
jurisdiction to require performance of their undertakings. It is important to note that this for a solicitor, without lawful justification, not to comply with an undertaking. On the facts,
jurisdiction exists even where the attorney is not guilty of misconduct. In that case the court the plaintiffs were not affected by any illegality arising from the fraudulent intention of H Inc
held that the Court has jurisdiction on the application by a person to whom a solicitor gives in entering into the transaction, and there was therefore no lawful justification for the
an undertaking in his capacity as a solicitor to exercise its summary procedure to compel the defendants not to comply with the undertaking, since the plaintiffs had no notice of any
solicitor to carry out the undertaking even though the applicant is not the client of the illegality and were in no sense successors in title of persons affected by the illegality as they
solicitor and the undertaking was not given in the course of legal proceedings and there is had insisted on the undertaking for their own protection. The defendants would therefore be
no suggestion of dishonourable or discreditable conduct on the part of the solicitor. directed to comply with their undertaking.

31
Disciplinary Proceedings took place. Furthermore, the damage suffered by the plaintiff was a natural and probable
consequence of the defendants’ breach of duty. The defendants were accordingly liable to
The failure to perform a professional undertaking is a breach of the Canons of Ethics, in the plaintiff.
particular canon 6(d) a breach of which is deemed professional misconduct. The case of
Morris v GLC was in fact an appeal by an attorney from a finding against him by the
disciplinary committee arising out of his breach of an undertaking to send a certificate of title ATTORNEY’S DUTIES TO THE COURT
to the financial institution which had loaned money to his client on the strength of that
undertaking. The attorney’s defence was that the client had by some unexplained means In the case of Rondel v Worsley Lord Reid said at page 227: “Every counsel has a duty to
come to his office and managed to retrieve and take away the title whereupon he promptly his client, fearlessly to raise every issue, advance every argument and ask every question
pledged the title to another financial institution. The finding against him was upheld by the however distasteful which he thinks will help his client’s case but as an officer of the court
CA and Mr. Justice Wright gave vent to what he termed his sense of revulsion at the concerned in the administration of justice he has an overriding duty to the court to the
attorney’s conduct as well as what he described as the attorney’s rather cavalier response standards of his profession and to the public which may and often does lead to a conflict
to the complaint against him. The Court of Appeal regarded the sanction imposed by the with his client’s wishes or with what the client thinks are his personal interests.” The duties
committee which was that he should be reprimanded and pay over to the lending institution owed by attorneys to the court are not of course owed to particular judges or even the
the balance owed to the financial institution, as benevolent and mild. judiciary as a whole but in reality they are owed “to the larger community which has a vital
public interest in the proper administration of justice.” Therefore the public interest is the true
source of the lawyer’s duty to the court and the court in enforcing those duties acts as
trustee or guardian for those interests. See “Lawyers duties to the court” D.A. Ipp (1998)
Action at law 114 L.Q.R. 63. It is the public interest then that is the source of the inherent power that the
court has assumed over the years over the conduct of attorneys at law. In addition to those
The case of Geoffrey Silver & Drake is an example of a case in which the court was of the examples given above it is the same inherent power that gives a judge in both civil and
view that the alleged breach by the attorney was not sufficiently clear as to attract the criminal cases the power to make an order that an attorney for one of the parties should pay
inherent jurisdiction of the court and that an ordinary action in the civil court was a more personally the whole or part of the costs of the other side in cases where his conduct has
appropriate route of redress. The case of Al-Kandari v J. R. Brown & Co. [1988] 1 All ER been found to involve a serious dereliction of his duties to the court resulting in the extra
833 demonstrates that in an appropriate case an attorney may beheld to owe a duty of care costs being incurred.
to his client’s opponent in hostile litigation arising out of a professional undertaking.
Ordinarily an attorney does not owe a duty of care to his client’s opponent thus court would In Holden & Co v The Crown Prosecution Service [1990] 1 All E.R. 368 the Court was of
not exercise its inherent jurisdiction. In this case the Court of Appeal held that although a the view that the court retained an inherent jurisdiction in both civil and criminal cases to
solicitor would not normally owe a duty of care to his client’s opponent in hostile litigation, he make an order that the solicitor acting for the defendant personally pay the whole or part of
would owe such a duty if he stepped outside his role as solicitor for his client and accepted the costs of the other side if his conduct involved a serious dereliction of his duty to the court
responsibilities towards his client’s opponent. When the defendants gave an implied which caused extra costs to be incurred. However, an improper act or omission which fell
undertaking to retain the husband’s passport and not release it to the husband, they were short of a serious dereliction of duty was not sufficient for an order to be made against a
not acting as solicitors or agents of the husband but as independent custodians of the solicitor for personal payment of costs. Moreover, the object of such an order was not
passport subject to the direction of the court and the joint direction of the parties. In the punitive and therefore the amount of the costs which the solicitor could be ordered to pay
circumstances the defendants owed the plaintiff a duty to take reasonable care to keep the was limited to the costs which his default had caused. On the facts, the solicitors in the first
passport in their possession (save as the plaintiff might otherwise agree) and to inform the case had been guilty of a serious dereliction of their duty to the court in not attempting to
plaintiff if for any reason it ceased to be in their possession. The defendants were in breach contact the defendant’s brother before the trial and their appeal would be dismissed. In the
of that duty because, having regard to the husband’s previous abduction of the children, second, third and fourth cases the solicitors had not been guilty of a serious dereliction of
there was a real risk that if he obtained the passport he might abduct them again, there was their duty to the court and their appeals would be allowed. In the fifth case the defendant’s
a more than negligible risk that the embassy might release the passport to the husband, and solicitor had been in breach of his duty to the court in not serving an alibi notice before the
if the plaintiff had known that the passport was no longer in the defendants’ custody she trial but since he had acted in the genuine belief that he was not in breach of his duty to the
could have prevented the husband having access to the children on the day the abduction court and that he was acting in the interests of his client it was not an appropriate case for
32
an order that the solicitor personally pay the costs thrown away and accordingly his appeal Justice Ipp in the afore-mentioned article classified an attorney’s duties under the following
would be allowed. heads:
1. general duty of disclosure which is owed to the court
In the first case the defendant was charged with possessing a shotgun without a licence. 2. general duty not to abuse the processes of the court
His defence was that the shotgun did not belong to him but to his brother. The defendant’s 3. general duty not to corrupt the administration of justice
solicitors knew the brother’s address but made no attempt to contact him until the first day of 4. general duty to conduct cases before the courts efficiently and expeditiously
the trial because they were told that he had gone to ground and would be unwilling to While these duties generally describe the requirements that have survived over many years
attend. In fact the brother was still living at his last known address and after two visits from the content of particular duties may change over time as social values and litigation
the police shortly before and during the trial the brother attended the Crown Court but by the practices change. These duties oblige counsel to make full disclosure to the court of all the
time he arrived the jury had already retired. The trial judge discharged the jury and ordered relevant law and facts whether they are for or against him/her, to be absolutely candid with
a fresh trial. He further ordered the solicitors to pay the costs thrown away. the court at all times, to act with perfect courtesy to the court and to opposing counsel at all
times and to present issues to the court as clearly and economically as possible so as to
In the second case the defendant was charged with drug offences. His solicitors indicated avoid wastage of the court’s time, prolixity and useless repetition. In keeping with modern
that he would probably plead guilty but when the case was listed for a plea counsel of the thinking on alternate dispute resolution attorneys should also take the lead where this is in
defendant’s choice was not available and he decided to plead not guilty. The defendant’s the best interests of their client by promoting recourse to negotiation, conciliation and
solicitors were unable to arrange a conference with the defendant’s chosen counsel until the mediation in proper cases. Ex parte applications fall into a special category and impose
morning of the trial. Following that conference the defendant changed his plea to guilty with additional obligations on counsel to make full disclosure of all matters that are material to
the result that the witnesses who had been summoned were not needed. The trial judge the application to the court bearing in mind always that it is the court and not counsel for the
ordered the solicitors to pay the costs thrown away. applicant to decide what is and what is not relevant. Failure to observe this rule will almost
In the third case the solicitors instructed to represent the defendant under a legal aid inevitably result in any order made on the ex parte application being set aside on the ground
certificate had little or no contact with the defendant prior to his trial and considered that a of material non-disclosure or misrepresentation. See Sans Souci Ltd v VRL Services Ltd
conference was not necessary. When the defendant failed to appear at the trial it had to be Sup Ct. Crim App No. 108 of 2004 judgment delivered 18 Nov 2005.
adjourned and the trial judge ordered the solicitors to pay the costs thrown away on the
ground that the solicitors had lost contact with the defendant and ought to have notified the Canon IV(c) provides: An attorney shall exercise independent judgment within the bounds
court of that fact. of law and ethics of the profession for the benefit of his client.

In the fourth case the defendant was charged with dishonestly obtaining a pecuniary
advantage by failing to disclose her previous convictions when applying for employment with DUTIES OF PROSECUTING COUNSEL
a security firm. At the trial defence counsel sought to exclude evidence of a conversation Canon III (h) provides: that an attorney engaged in the prosecution of a person has a
between the defendant and a police officer regarding her previous convictions and the trial primary duty to see that justice is done and he must not withhold facts or secrete witnesses
was adjourned to enable the prosecution to obtain a memorandum of convictions. The trial which tend to establish guilt or innocence of the accused. So it has been said time and
judge ordered the defendant’s solicitors to pay the costs of the adjournment. again that the duty of prosecuting counsel is not to obtain conviction at all costs but to act as
a minister of justice.
In the fifth case the defendant was charged with robbery and assault. His defence was
that although he had been in the vicinity of the alleged crime he had not taken part in it. Canon V (o) should also be borne in mind since it provides: An attorney shall not knowingly
Before the trial the defendant’s solicitor was informed of a possible alibi witness but the make a false statement of fact or law.
defendant’s solicitor was unable to interview him. In the course of the trial the defence Canon V (j) to (n) also provide that an attorney shall not assert his personal belief in his
served an alibi notice on the prosecution and the trial was adjourned for two hours to enable client’s innocence to either judge or jury or his personal knowledge as to the facts of the
the prosecution to investigate the alibi. The trial judge ordered the solicitor to pay the costs case at hand.
of the adjournment. The solicitors in the five cases appealed against the orders made Canon V (k) provides that an attorney shall not make a person unavailable as a witness or
against them. cause that person to leave the jurisdiction and

33
Canon V(l) provides that an attorney shall not offer to pay a witness for giving evidence in “It cannot be overemphasized that the purpose of a criminal prosecution is not to
any matter save as reimbursement for expenses reasonably incurred or compensation for gain a conviction. It is to lay before the jury what the crown considers to be credible
time lost. evidence to what it considers relevant to what is alleged to be a crime. Counsel has
Canon V(m) provides that an attorney shall not knowingly use perjured testimony or false a duty to see that all available legal proof of the facts is presented. It should be done
evidence and firmly and pressed to its legitimate strength but it must also be done fairly. The role of
Canon V (n) supplements (m) by providing that an attorney shall not counsel or assist his prosecutor excludes any notion of winning or losing. His function is a matter of public
client or a witness in conduct that the attorney knows to be illegal or fraudulent and when duty than which in civil life there can be none charged with greater personal
aware of such conduct by his client must call upon the client to rectify same. responsibility. It is to be efficiently performed with an ingrained sense of dignity, the
seriousness, and the justness of judicial proceedings.”
In Randall v R (2002) 60 WIR 103 [Cayman Islands] the Privy Council held that not every
departure from good practice renders a trial unfair. Inevitably, in the course of a long trial, This principle is 50 yrs later still applicable. So in the case the PC concluded that
things are done or said which should not be done or said. Most occurrences of that kind do prosecuting counsel had departed significantly from good practice during the course of the
not undermine the integrity of the trial, particularly if they are isolated and particularly if, trial by conducting himself as no minister of justice should have done with the result that the
where appropriate, they are the subject of a clear judicial direction. But the right of an appellant had been denied the substance of a fair trial. The well-known rules designed to
accused to a fair trial is absolute. There may come a point when the departure from good secure a fair trial are not as Lord Bingham observed:
practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate
court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, “the rules of a game. They are rules designed to safeguard the fairness of the
however strong the grounds for believing the accused to be guilty. In this case, the Privy procedure.” p.110
Council concluded that there had been such departures from good practice in the course of
the trial as to deny the accused the substance of a fair trial. Prosecuting counsel had
conducted himself as no minister of justice should conduct himself. The trial judge had failed
to exert the authority vested in him to control the proceedings and to enforce proper DEPARTURES FROM THE EXPECTED STANDARD OF CONDUCT
standards of behaviour. The judge had allowed himself to be overborne and had allowed his
antipathy to both the accused and his counsel to be manifest. While none of the matters of In Johnson v R (1996) 53 WIR 206
complaint taken on its own would have supported a successful appeal, taken together they Facts- During the course of the trial the Prosecutor made certain allegations against the
left no alternative but for the convictions to be quashed. defense counsel. There were improper comments of the Prosecutor which had the effect of
creating a suspicion to jurors that the accused was involved in another crime for which he
Facts- Appellant charged with theft and deception on five counts- trial lasted 41dys bf the t- was not charged.
judge and jury –fraud trial- convicted on all counts and sentenced to 4 ½ yrs imprisonment. The Court of Appeal of Jamaica held that a trial judge had a duty to maintain the dignity and
Orders for compensation of US$500 to be paid on each count. Appellant appealed against authority of the court and to guard against conduct that might improperly influence jurors in
conviction on all counts- appeal allwd only on count 5. Court of Appeal- Prosecutor by his the performance of their duty; in this case the jury must have been distracted from their task
conduct undermined the integrity of the trial process and the trial judge rather endorsed the by the conduct of prosecuting counsel and the appellant’s trial had not been fair, despite
conduct of the prosecutor. Prosecuting counsel repeatedly made prejudicial comments such rebukes as the judge had delivered to counsel for the prosecution. In this case the
while examining prosecution witnesses, repeated interrupted with prejudicial comments the prosecutor (Mr. Hugh Wildman) repeatedly made statements in presence of jury implying
XXN of Pros. Witnesses, and interrupted the exam in chief of Defence witnesses and that the accused who was on trial for murder may have been involved in another murder.
interrupted the judge in the summing up.- Pros. shouted at appellant and accused him of Per Patterson JA: “There is no doubt that, for the proper administration of justice,
circumlocution. prosecution counsel and defence counsel should be allowed to perform their respective
tasks fearlessly, and to raise such issues and advance such arguments as are relevant to
The Privy Council also cited with approval the following statement on the subject by Mr. the case. But there are certain professional standards that every counsel is bound to
Justice Rand in the Supreme Court of Canada in the case of Boucher v R [1954] 110 Can. observe. The dignity of the court must never be compromised. Counsel must not cast
Cr. Cases 270: aspersions or make improper imputations on the integrity of the opposing counsel, unless in
the most extreme circumstances, and then only in the absence of the jury. Such conduct
34
emanating from prosecution counsel in the presence of the jury creates prejudice in the
minds of the jury and inhibits a fair and impartial trial.” The accused was tried and convicted for murder. The central issue at trial was the
identification of the accused. The basis of the appeal against the conviction was that
In Benedetto v R (2003) 62 WIR 63Appellants were tried for murder in the BVI. There was prosecuting counsel had conducted the cross examination in a grossly improper fashion
a witness from the USA who was also on a charge fro forgery. The Prosecutor sought to which escaped comment or criticism of the judge. It was grossly improper for Crown
align himself with the jury as being members of the island in opposition to the USA Counsel to tell the jury what a witness who was not called would have said. In addition
witnesses who were said to come to the W.I. to pull wool over the eyes of the jury. The Crown Counsel himself was purporting to give evidence as to the accused’s movements
Prosecutor in addressing the jury was said to use irrelevant and inadmissible material. The when he said he would see the accused around town on his bicycle.
Privy Council held that where prosecuting counsel made a speech to the jury that was
described as “xenophobic and inflammatory” this was improper conduct and though there The appeal was allowed and the conviction quashed and the case remitted to the lower
could be no objection to a robust speech from prosecution counsel, counsel went too far. court for a retrial to be considered.

See Ramadhanie v R 47 of 2004 PC [15.12.2005]

Christmas Humphreys – Duties and Responsibilities of Prosecuting Counsel 1955 Cr.
In this case 4 defendants were tried for drug trafficking charges. The house of Lords LR 739
criticized the failure of the defence to lead evidence on the good character of the accused.
The trial judge had prevented the defence from pursuing questions that were viewed to be R v Soanes 1946 32 Cr. App. R 136: where nothing appears on the depositions which can
prejudicial to the accused. The prosecution sought to rely positively on the questioning be said to reduce the offence charged in the indictment to some lesser offence for which a
which the judge stopped as an indication of the guilt of the accused. The privy counsel verdict may be returned the duty of counsel for the Crown is to present the offence charged
identified 3 flaws with the prosecuting counsel’s final speech. in the indictment

b) there were passages in which the prosecution in effect told the jury or R v. Broad 1978 68 Cr. App. R. 281: where an accused person has been charged on
strongly implied that there was incriminating material which had not indictment with an offence and counsel for the prosecution invites the trial judge to approve
been put before the jury; that the prosecution do not proceed, the judge is not a rubber stamp to approve a decision
c) It was emotive and contained unjustified comments on the defence of counsel without further consideration; but may, having read the papers and formed the
case and evidence or on defence counsel; and conclusion that there was very substantial evidence in the accused’s case which a jury
d) A number of passages had counsel improperly pledging his own credit ought to consider, order the trial to proceed. Further in the absence of an applicant that
for the soundness of the prosecution’s case. another judge should try the case, the judge is abundantly entitled to try the case himself.

The appeals were allowed on the basis that there was material irregularity and unfairness in
the trial process. The Privy Cpuncil said inter alia, “whatever criticisms may be leveied DUTIES OF DEFENCE COUNSEL IN CRIMINAL CASES
against the defence counsel’s speeches that could be no justification for impermissible and
unfair comments by prosecuting counsel. The high standards required of prosecuting See article: Duties of Defence Counsel – B. Munday 1983 Crim. L. R 703
counsel as a ‘minister of justice’ do not depend on defence counsel’s compliance with the
rules governing their conduct of the defence. Canon lll (g) sets out the basic rule:
“An attorney in undertaking the defence of persons accused of crimes shall use all
The Privy Council affirmed a number of well known decisions governing duty of prosecuting fair and reasonable means to present every defence available at law without regard
counsel such as Boucher v R; Johnson v R; Randall v R and Benedetto v R. to any personal views he may hold as to the guilt of the accused.”

This rule is supplemented by Canon IV(c) which requires an attorney:

“to exercise independent judgment within the bounds of the law and the ethics of the
Dean Tillett v R profession for the benefit of his client.”
35
 See recent Privy Council case of Kurt Ebanks v R, No. 11 of 2005 del. 27 March 2006
However, Canon V(j) prohibits an attorney from asserting to the jury his personal belief in which emphasizes:
his client’s innocence or the justice of his cause or his personal knowledge of any of the
facts under investigation. 1. That in criminal case the decision of the accused whether or not to give evidence
on his own behalf is of such potential importance that it has long been
The Duty not to mislead the court recognized that it should be recorded in writing and signed by the accused: see
*Cannon V (n) states: para. 17 Lord Rogers citing Bethel v The State (1998) 55 WIR 394 where it was
An Attorney shall not counsel or assist his client or a witness in conduct that the attorney held that In this case there was a complete absence of any documentation
knows to be illegal or fraudulent and where he is satisfied that his client has in the course of concerning the instructions which counsel obtained from his client, the defendant.
the particular presentation perpetrated a fraud upon a person or a tribunal he shall promptly The members of the Board expressed surprise that in a capital case no witness
call upon him to rectify the same. statement had been taken from the defendant nor other memorandum made of
his instructions. In view of the prevalence of allegations such as those made in
Canon V(o) provides that an attorney shall not knowingly make a false statement of law or this case, defending counsel should as a matter of course make and preserve a
fact. written record of the instructions he received. Further, there was in this case a
new disclosure in counsel’s affidavit, ie that the defendant had made a full
In Re Bridgewood [1988] Law Society Gazette 53 a solicitor appeared in court and spoke confession to counsel, which must have put counsel in a gravely embarrassing
in mitigation of sentence for a client for whom he had previously acted who on this occasion position in the conduct of the defence. In view of the lack of documentation as to
to his knowledge had appeared in court and pleaded guilty under a false name. He was counsel’s instructions and the new disclosure in counsel’s affidavit the Board
himself subsequently found guilty of acting in a manner tending to pervert the course of remitted the case to the Court of Appeal.
justice. He received a suspended sentence of 9 months in jail. The Solicitors Disciplinary
Tribunal also found him guilty of professional misconduct on the basis that a solicitor takes 2. The decision whether or not to give evidence is always ultimately one for the
part in a positive deception of the court when he puts forward to the court or allows his client defendant himself after receiving appropriate advice from counsel. The decision
to put forward information which the solicitor knows to be false with the intention of not to give evidence is one of such potential importance that it has long been
deceiving the court. His duty in these circumstances assuming that he was unable to recognized that it should be recorded in writing.
persuade the client to change her mind was to withdraw from the case.

John Francis Bridgewood and Solicitor’s Duty to the Client and to the Court – Diane Burleigh 3. The traditional rule that defence counsel should not suggest to crown witnesses
(1985) Law Society Gazette 11 that their evidence implicating the accused is fabricated unless the accused
himself is to be called to give evidence in support of that suggestion must give
way in an appropriate case to the wider rule of proper professional practice by
In Sankar v The State (1994) 46 WIR 452 the Privy Council held that where the defence which counsel is bound to put his client’s case whether or not he intends to call
had been seriously prejudiced by the conduct of the defence attorney, it was open to the evidence to support it.
court to interfere; in this case matters had come to light after the Court of Appeal had heard
the appellant’s appeal and it was now conceded by counsel for the State that there had
been a miscarriage of justice, in that the appellant at his trial had been deprived of deciding DUTIES OF DEFENCE COUNSEL IN CRIMINAL CASES
whether or not he should give evidence, or at least make a statement from the dock; further,
the fact that the defence attorney might have been placed in an embarrassing position by An attorney to whom a confession of guilt has been made by his client must observe the
what the appellant had said to him would not have exonerated him from his duty to explain following rules: Extract from the Code of Conduct for the Bar of England & Wales
the position to the appellant and place the options before him, even if the defence attorney
should then feel obliged to withdraw from the trial. 1. If the confession is made before the proceedings have begun, he may continue
to act only if the plea is to be one of guilty or in very limited circumstances where
he may continue to act and effectively put the prosecution to prove its case. It

36
 should be borne in mind that if the client instructs the attorney that he is guilty therefore always be a question of balance. Whenever the judge feels it necessary to put
and want the attorney to put forward a false case the attorney is obliged to questions it will generally be more convenient for him to do so when counsel either in
withdraw. examination in chief or cross-examination has finished his questioning or is about to move
2. If the confession is made during the proceedings in circumstances where the on to a new topic.
attorney cannot withdraw without prejudicing the client he should continue to act
and do all that he can honourably do for the client. But in this situation the It is not in every case that the nature or frequency of a judge’s intervention will result in an
attorney is severely limited in the conduct of the defence in that he cannot appeal being allowed, but this result is likely when the judge departs from his role and
suggest or put an alternate/ affirmative case to the witnesses which is descends into the arena. In Yuill the Court of Appeal held that (i) on a submission of no
inconsistent with the instructions which he has received. Thus he cannot assert case to answer a party did not ipso facto lose the right to call evidence if the submission
that someone else committed the crime in question or calling evidence in support failed. The right was lost only when an election express or implied had taken place (ii) the
of an alibi. part which a judge should take while witnesses were giving their evidence rested with his
discretion and the mere fact that the judge took a large part in the examination of witnesses
did not justify the court in ordering a new trial and (iii) an impression as to the demeanour of
COUNSEL’S DUTY IN RESPECT OF THE SUMMING UP a witness ought not to be adopted by a trial judge without testing it against the whole of the
evidence of the witness in question and it was open to the appellate court to find that the
Cox v R (1976) 63 Cr.App.Rep 79 is some authority of the proposition that once the judge view of the trial judge as to the demeanour of the witness was ill-founded.
has started to sum up in a criminal trial, counsel for the defendant is under no duty to the
court to draw to the judge’s attention to any error of law on his part during the summing up. See also Jones v National Coal Board [1957] 2 Q.B. 255 where Lord Denning observed:
However in the subsequent case of Edwards v R (1983) 77 Cr. App.Rep 5 the Court of
Appeal while not expressly disapproving the decision in Cox described it as: “that in the system of trial which we have evolved in this country, the judge sits to
hear and determine the issues raised by the parties not to conduct an investigation
“inconceivable that counsel for the defence acting in the best interest of their could or examination on behalf of the public at large as occurs in some foreign countries.”
have failed to draw to the attention of the judge as serious an omission as a failure to
give a direction on the standard of proof unless they themselves were of the view This principle is equally applicable to criminal cases where it is particularly inappropriate that
that the evidence of the prosecution against their client was overwhelming.” Per Lord the judge’s descent into the arena should be such as to indicate to the jury that he has
Goddard C.J. formed some adverse view of the defendant or the case being advanced on his behalf.

The language of the courts in Edwards suggests that Cox might be decided differently if the
matter was to come up for decision in the future.
Role of Judge

THE ROLE OF THE TRIAL JUDGE See R v Hamilton [1969] Crim LR 486 where it was stated that interventions by the judge
to clear up ambiguities and to enable him to make a proper note of the evidence are
In the case of Yuill [1945] 1 All E.R. 183 Lord Greene M.R. at page 185 observed that the perfectly justified. However there are at least 3 established situations in which interventions
trial judge in divorce proceedings must: will be held to be unwarranted and may result in the quashing of a conviction:
1. Interventions by which the judge invites the jury to disbelieve defence witnesses in
“have lost sight of the inconveniences which are apt to flow from an undue terms that cannot be cured by telling them at the end of the day that the facts are a
participation by the judge in the examination of witnesses.” matter for them.
2. Interventions by the judge which make it impossible for defence counsel to do his or
Since it is accepted that a judge has a right and it is sometimes a duty to put questions to her duty in presenting the case for the defence properly
witnesses with a view to elucidating an obscure answer and also to clear up matters of 3. Interventions which have the effect of preventing the defendant from doing himself
evidence where necessary, the question of what is or is not proper for this purpose will justice and presenting his story in his own way.

37
 conduct of litigation by their or their opponent’s legal representatives, would only make an
See R v Hulusi Purvis 1973 58 Cr. App. R. 378 at 385 per Laughton LJ – order under s 51(6) of the 1981 Act if it was satisfied that the conduct characterised as
‘improper, unreasonable or negligent’ directly caused the wasted costs complained of, and
“It is a fundamental principle of an English trial that if an accused gives evidence he would be astute to safeguard against wasted costs orders becoming a back-door means of
must be allowed to do so without being badgered and interrupted. Judges should recovering costs not otherwise recoverable against a legally aided or impoverished litigant.
remember that most people going into the witness box, whether they be witnesses The meaning of the words ‘improper, unreasonable or negligent’ was well-established and
for the crown or for the defence in a state of nervousness, they are anxious to do not open to serious doubt. ‘Improper’ covered any significant breach of a substantial duty
their best; they expect to receive a courteous hearing and when they find almost as imposed by the relevant code of professional conduct, as well as conduct which would be
soon as they get into the witness box and are starting to tell their story that the judge improper according to the consensus of professional opinion, whether it violated the letter of
of all people is intervening in a hostile way, then human nature being what it is, they a professional code or not. ‘Unreasonable’ described conduct which was vexatious,
are liable to become confused and not to do as well as they would have done had designed to harass the other side rather than advance the resolution of the case, and it
they not been badgered and interrupted.” made no difference that the conduct was the product of excessive zeal and not improper
motive, since the acid test was whether the conduct permitted of a reasonable explanation.
In R v Matthews 1983 78 Cr. App. R 33 the Court of Appeal held that in considering the ‘Negligent’ was to be understood in an untechnical way to denote failure to act with the
propriety of questions by a judge of witnesses during a criminal trial the following principles competence reasonably expected of ordinary members of the profession. The conduct
must be considered (1) while a large number or interruptions must put the Court of Appeal complained of in the first four cases and the sixth case was not ‘improper, unreasonable or
on notice of the possibility of a denial of justice mere statistics were not of themselves negligent’ and had not resulted in wasted costs, with the result that none of the s 51 orders
decisive and (2) the critical aspect of the investigation was the quality of the interventions as should have been made. In this case the conduct complained of was that the solicitors had
they related to the attitude of the judge as might be observed by the jury and the effect that failed to (i) to discover that the plaintiff’s workplace was not dangerously noisy at an earlier
the interventions had either on the orderly, proper and lucid deployment of the defendant’s stage in proceedings seeking damages for noise-induced hearing loss, (ii) failure to notify
case by his advocate or on the efficacy of the attack to be made on the defendant’s behalf the defendants of the grant of legal aid to the plaintiff where such notification could have
on vital prosecution witnesses by cross examination administered by his advocate on his resulted in early settlement of the action, (iii) use of an implied threat of a winding-up petition
behalf. Ultimately it was a question of was the case for the defendant as presented to the in a negotiating offer as an inducement to the debtor to compromise a claim relating to a
jury in view of the judges summing up and submission by his counsel such that the jury’s disputed debt and (iv) failure to respond to issues raised by the other party’s solicitors and,
verdict might be unsafe? in consequence, failure to negotiate the terms of a trust deed and avoid the need to apply to
the court for directions. Lord Bingham noted that these 3 categories are not to be regarded
See also R v Renshaw 1989 Cr.im L. R. 811. See also *Article Descent to Avernus 1989 as self-contained compartments but that they do in fact overlap considerably and do not
139 New Law Journal therefore call for any sharp differentiation. The case is also important for the point that a
lawyer is not to be held to have acted improperly unreasonably or negligently simply
because he acts for a party in pursuance of a claim that is bound to fail.
Liability for costs
The relevant rules were subsequently amended to at first codify Myers v Elman and later to
Long before modern provisions made provision for wasted costs payable by the attorney it make provision for wasted costs orders in terms which are very similar to those contained in
was accepted at common law that the court had jurisdiction to make such orders: Myers v our modern civil procedure rules in the Caribbean. The provisions of the Jamaica CPR
Elman. In criminal cases an order could be made that the attorney should pay the costs r.64.1(3) are typical. It says that the court may direct that wasted costs be paid by an
thrown away by his negligent handling of the case: Holden & Co. v Crown Prosecution. attorney in cases in which such costs have been occasioned as a result of an improper
All of the older cases seem to require that the attorney be guilty of gross misconduct or unreasonable or negligent act or omission by the attorney.
negligence before this jurisdiction could be invoked: Orchard v Southeastern Electricity
Board.

In Ridehalgh v Horsfield the Court of Appeal held that the court, in exercising its REMUNERATION
jurisdiction to ensure that litigants should not be financially prejudiced by the unjustifiable
38
 - Whether the contract was entire or non-entire. the amt. and
- What was agreed and what was the nature of the work undertaken manner of payment of fees for the whole or part of any legal business done or to be done
- Blyth v Fanshawe; Re A Solicitor by the atty, wither by a gross sum or percentage or otherwise; so however that the atty
- In Blyth a solicitor was authorized to employ a shorthand typist but failed to making the agreement shall not in relation to the same matter make any further charges
point out to his client that this expense might not be allowed to recover than those provided in the agreement. If an action for recovery of fees is commenced the
against his client the costs of the shorthand notes. court may assess the agreement and if it appears to be unfair and unreasonable the court
may reduce the amount
Canon IV (f) in Jamaica and is in the same terms in the other jurisdictions. It requires that
the fees that an attorney charges shall be fair and reasonable. It states: 21.-(1) An attorney may in writing agree with a client as to the amount and manner of
(f) The fees that an Attorney may charge shall be fair an reasonable and in payment of fees for the whole or part of any legal business done or to be done by the
determining the fairness and reasonableness of a fee, any of the following attorney, either by a gross sum or percentage or otherwise; so, however, that the attorney
factors may be taken into account: - making the agreement shall not in relation to the same matters make any further charges
(i) the time and labour required, the novelty and difficulty of the questions than those provided in the agreement:
involved and the skill required to perform the legal service properly; Provided that if in any suit commenced for the recovery of such fees the agreement appears
(ii) the likelihood that the acceptance of the particular employment will to the court to be unfair and unreasonable the court may reduce the amount agreed to be
preclude other employment by the Attorney; payable under the agreement.
(iii) the fee customarily charged in the locality for similar legal services; (2) Fees payable under any such agreement shall not be subject to the following provisions
(iv) the amount, if any involved; of this Part relating to taxation nor to any other provisions thereof.
(v) the time limitations imposed by the client or by the circumstances;
(vi) the nature and length of the professional relationship with the client; 22.-(1) An attorney shall not be entitled to commence any suit for the recovery of any fees
(vii) the experience, reputation and ability of the Attorney concerned; for any legal business done by him until the expiration of one month after he has served on
(viii) whether the fee is fixed or contingent; the party to be charged a bill of those fees, the bill either being signed by the attorney (or in
(ix) any scale of fees or recommended guide as to charges prescribed by the case of a partnership by any one of the partners either in his own name or in the name
the Incorporated Law Society of Jamaica, the Bar Association, the of the partnership) or being enclosed in or accompanied by a letter signed in like manner
Northern Jamaica Law Society or any other body approved by the referring to the bill:
General Legal Council for the purpose of prescribing fees. Provided that if there is probable cause for believing that the party chargeable with the fees
is about to leave Jamaica, or to become bankrupt, or compound with his creditors or to do
One should therefore bear in mind what others are charging. One must factor in the time any act which would tend to prevent or delay the attorney obtaining payment, the Court may,
limitation imposed by the client for example the work must be done quickly, or they have notwithstanding that one month has not expired from the delivery of the bill, order that the
waited until the matter is urgent. One may also consider if the client has been a long attorney be at liberty to commence an action to recover his fees and may order those fees to
standing one with whom the attorney enjoys good relations. The experience reputation and be taxed.
ability of the attorney is also a relevant factor. Another consideration in this regard is (2) Subject to the provisions of this Part, any party chargeable with an attorney’s bill of fees
whether the fee is fixed or contingent. may refer it to the taxing officer for taxation within one month after the date on which the bill
was served on him.
Note Also Canon IV (e) (3) If application is not made within the period of one month aforesaid a reference for
An attorney shall not enter into an agreement for or charge or collect an illegal fee (breach taxation may be ordered by the Court either on the application of the attorney or on the
of this canon may make an attorney subject to disciplinary proceedings) application of the party chargeable with the fees, and may be ordered with such directions
and subject to such conditions as the Court thinks fit.
Legal Profession Act (4) An attorney may without making an application to the Court under subsection (3) have
Part V Recovery of Fees the bill of his fees taxed by the taxing master after notice to the party intended to be charged
thereby and the provisions of this Part shall apply as if a reference for such taxation has
S 21 An atty may in writing agree with a client as to the following: been ordered by the Court.

39
General Notes

 if the agreement re fees is in writing only section 21 applies

a. when 21 applies, there is no taxation or application of
any other provision under Part V –LPA
b. recovery of fees will be subject to the terms of the
agreement
c. in any suit commenced for recovery of fees, court may
reduce the amount agreed if it finds it unfair and
unreasonable

 If the agreement is not in writing section 22 applies

a. Attorney must send client a bill of fees and wait 1
month after he has served such bill before he is entitled
to recover fees
b. If attorney believes that client is about to leave JA or
become bankrupt or do anything to avoid payment, he
is not obliged to wait one month but can get an order
that he can commence action to recover
c. Client may, within one month of being served with the
bill, refer it for taxation
d. If client does not apply within one month period in (c)
above, attorney or client may apply to the court for an
order for taxation
e. Attorney may, after giving notice to the client, have bill
taxed

 An agreement will be viewed with suspicion by the Court if unclear and will be
dismissed

Contingency Fees

Champerty and Maintenance- two common law torts which prohibited an attorney from
fueling litigation by offering free legal services in exchange for a fee in the future.

The Canons seem to recognize contingency fees but there is no mention of it in the Legal
Profession Act.

Taxing your bill

- Know how to do this
- Steps to take
40