In Re Attorney-at -Law
IN RE ATTORNEY-AT-LAW
SUPREME COURTJAYASINGHE, J.
SC RULE 2, 2004 (D)
NOVEMBER 17, 2004MAY 3, 2005JUNE 27, 2005SEPTEMBER 14, 2005OCTOBER 5, 18, 2005NOVEMBER 7, 22, 2005DECEMBER 5, 2005JANUARY 20, 2006FEBRUARY 21,2006MARCH 24, 2006APRIL 28, 2006JUNE 16, 2006JULY 18, 2006SEPTEMBER 12. 27, 2006OCTOBER 23, 2006
Rule against an Attomey-at-Law – Rule 60, 61 of SC (Rules) Conduct ofEtiquette for Attorneys-at-Law – Judicature Act S44 (2). What amounts toprofessional misconduct ? – disgraceful dishonourable conduct – Should anAttomey-at-Law who is before Court on allegation of criminal misconduct beprecluded from appearing in Court?
The Rule is not based on the professional conduct as an Attorney-at-Law but on a personal relationship with his wife.
As regards charge (c) which relates to Criminal Misconduct -Bigamy – it will not be gone into as Magistrate Courts proceedingsare still pending.
Per Nihal Jayasinghe, J.
"Where an Attorney-at-Law is before Court on allegation of criminalmisconduct, such Attorney-at-Law should be precluded from appearing
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before Court for the reason that his integrity is being assailed andconsequently suffers in his reputation as an Attomey-at-Law.°
Suspension of the respondent will not be removed until theMagistrate's Court proceedings are terminated.
Rule against an Attorney-at-Law.
K.A.P. Ranasinghe SSC for Attorney-General
Manohara de Silva PC for respondent
Rohan Sahabandu for the Bar Association of Sri Lanka
December 6, 2006NIHAL JAYASINGHE, J.
This Rule was issued on the respondent calling upon him toshow cause why he should not be suspended from practice orremoved from the office of attorney-at-law of the Supreme Courtin terms of Section 42(2) of the Judicature Act read with Rule 60and 61 of the Supreme Court (Conduct of Etiquette for attorneys-at-law) Rules. The complaint was made by one AthulaMunasinghe.
The rule issued contained eight allegations classified as (a) to(h). On 28.4.2006 the Senior State Counsel informed Court thatas no evidence in respect of the charges of misconduct allegedin counts (b), (f) and (g) has been led, the respondent was calledupon to meet the allegations in respect of charges (a), (c), (d),
We have very carefully considered the evidence placedbefore us in respect of charge (a) We are in agreement with thesubmissions of the learned President's Counsel that the rule isnot based on his professional conduct as an attorney-at-law buton a personal relationship with his wife. We are also mindful ofthe fact that his estranged wife Vasantha Munasinghe had nevertaken any positive step against the petitioner even though shewas very explicit regarding the treatment she received at thehands of the respondent. We are also mindful of the fact thatthese proceedings were initiated on a complaint by the brother ofthe said Vasantha Munasinghe.
In Re Attorney-at -Law (Nihal Jayaslnghe, J.)
The charge (c) relates to the marriage to one PushpaChandani. The said Pushpa Chandani had obtained a divorcefrom the respondent on the ground of malicious desertion. Thesaid Pushpa Chandani did not give evidence at the inquiry. Thischarge has nothing to do with the respondent's responsibility asan attorney-at-law.
Charge (d) consists of two limbs. Firstly, it alleges that therespondent fraudulently enticed two women through advertise-ments and secondly abused them both sexually and physically.There was no evidence before us the advertisement was placedby the respondent nor was the paper notice produced. OneGnanawathie who gave evidence denied any sexual assault.
On consideration of the evidence placed in respect of charges
, (c) and (d) we are unable to hold that the conduct of therespondent could reasonably be regarded as disgraceful ordishonourable of an attorney-at-law of good repute andcompetency and to hold that this respondent has acted in breachof rule 60 and consequently unfit to remain an attorney-at-law.
However charge (e) relates to criminal misconduct, in that therespondent entered into a marriage with one Thilaka Malini BopeWeeratunga when the divorce action in respect of the previousmarriage was infact pending in the District Court of MountLavinia. We will not go into the charge (h) as case No. 47297 isyet pending in the Magistrate's Court of Galle.
We have given serious consideration to the writtensubmissions of Mr. Rohan Sahabandu appearing for the BarAssociation of Sri Lanka. He has strenuously argued citingauthorities where, an attorney-at-law is before Court on theallegation of criminal misconduct, such attorney-at-law shouldbe precluded from appearing before Court for the reason that hisintegrity is being assailed and consequently suffers in hisreputation as an attorney-at-law and strenuously objects to thepresent suspension of the respondent being removed until theMagistrate's Court proceedings are terminated. We are of theview that there is merit in this submission.
While we clear the respondent of the allegations set out in (a),
, and (d) we are of the view that no finding be made in respect
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of the allegations set out in (e) as the respondent is beingcharged in respect of the allegations set out in (h). Weaccordingly direct the Magistrate of Galle to conclude the trialagainst the accused within three months hereof. If the accusedis acquitted by the Magistrate these proceedings will be treatedas terminated. In the event the respondent is found guilty theSupreme Court will take appropriate steps.
UDALAGAMA, J.I agree.
DISSANAYAKE, J.I agree.
Respondent cleared of all allegations, no finding is made in respectof the allegations which are pending before the Magistrate's Court(charge of Bigamy).
Directions given to Magistrate's Court to conclude the trial within 3months.
The Attorney-at-Law was subsequently acquitted in the Magistrate'sCourt. The State lodged an appeal. The Rule was discharged by theSupreme Court.
IN RE ATTORNEY -AT -LAW