034-SLLR-SLLR-1987-1-IN-RE-ARTHENAYAKEM-ATTORNEY-AT-LAW.pdf
IN RE ARTHENAYAKE, ATTORNEY-AT-LAW
SUPREME COURT.
ATUKORALE, J.. L. H. DE ALWIS. J. AND SENEVIRATNE, J.
S.C. RULE No. 1 OF 1986.
SEPTEMBER 26. OCTOBER 15. 22. AND NOVEMBER 5, 6 AND 7. 1986.
Rule-Malpractice-Failure to aver jurisdiction-Failing to appear-Failing to takesufficient interest in ensuring service of summons-Unduly delaying taking of steps torevoke proxy-Making accusations and allegations against client and using languageunbecoming of an attorney-at-law and a gentleman in correspondence withclient-S. 42(2) and s. 42(3) of Judicature Act No. 2 of 1978-Failure to submitobservations to complaint on being called upon by the Supreme Court-Rule 80(3).
Mr. A. C. Alles. a former Supreme Court Judge complained to the Supreme Court thatR. N. J. Arthenayake Attorney-at-Law (referred to as the respondent) whom he(Mr. Alles) had retained to institute and prosecute proceedings for infringement ofcopyright in the District Court of Mount Lavinia against nine defendants had committedprofessional malpractices in the institution and conduct of the said proceedings in that-
in the plaint filed (in Sinhala) the respondent had failed to ensure the inclusion ofthe pleading averring jurisdiction which had been set out in the English draft of theplaint prepared by counsel.
Ib) the respondent had failed to appear in court on behalf of Mr. Alles. morespecifically on 30th July, 1984 when the case was called and failed to takesufficient interest in having summons served on the defendants.
the respondent acted in a manner detrimental and/or prejudicial to Mr. Alles inthe matter of instituting and prosecuting the action and unduly delayed steps forthe revocation of the proxy granted by Mr. Alles to him.
while being his registered attorney the respondent made accusations andallegations against Mr. Alles and engaged in correspondence with him inlanguage unbecoming of an attorney-at-law and a gentleman.
Held-
The omission to aver jurisdiction in the plaint though unintentional was due to utternegligence.
Although the Court made an erroneous order calling for an affidavit which wasunnecessary where a permanent injunction was being prayed for there was anoverriding duty to court cast on the registered attorney to ensure that the order wascorrected. The resultant delay of over two months to obtain an order to issue summonswas due to lack of prudence and diligence on the part of the respondent.
The respondent had neglected to appear for Mr. Alles on 30.7.1984 and hisexplanation for his failure is unconvincing and unacceptable.
The respondent had unduly delayed the steps for revocation of his proxy.
In his correspondence with Mr. Alles the respondent had indulged in languageunbecoming of an attorney-at-law and a gentleman. The respondent's allegation ofdishonesty on the part of Mr. Alles was demonstrably baseless and made recklessly andirresponsibly.
The respondent's failure to file his observations on being called upon by theSupreme Court even after obtaining extensions of time, shows he did not have respectand regard for the Supreme Court.
Every negligent act on the part of an attorney-at-law. would not amount to amalpractice within the meaning of s. 42(2) of the Judicature Act but the conduct andnegligence of the respondent amount to professional misconduct and malpracticewithin the meaning of s. 42 of the Judicature Act.
Apart from its statutory powers the Supreme Court has inherent power to deal withdelinquent attorneys-at-law.
Professional misconduct which is improper or deplorable or reprehensible when judgedin relation to accepted standards of propriety and competence amounts to malpractice.
Cases referred to:
Re Edwin Beven-(1897) 3 NLR 67.
Re Siman Appu's Plaint-(1900) 4 NLR 127.
In re a Proctor- {1933) 36 NLR 9.
Solicitor-General v. Jayawickrema-1952) 53 NLR 320.
In re S. Dharmalingam-(1968) 76 NLR 94. '
In re a Proctor- (1943) 44 NLR 558.
. Re a Solicitor-[ 1972] 2 All ER 811.
Re M-[1930] NZLR 285.
In the matter of a Proctor of the Supreme Court and in the matter of section 19 ofthe Courts Ordinance, 1889-(1928) 30 NLR 65.
Brendenv. Spire-]1938] IKB 176.
In re Moonesinghe-(1917) 4 CWR 370.
K. M. M. B. Kulatunge, P.C. Solicitor-General with Miss M. N. B. Fernando, S.C. forAttorney-General.
Eric Amerasinghe, P. C. with I. G. N. de Seneviratne, W. P. Gunatilaka. S.J. Mohideenand Miss D. Guniyangoda for the Bar Association of Sri Lanka.
A. C. Gooneratne, Q.C. with P. A. D. Samarasekera. P.C. K. Shanmugalingam. J. E. P.Deraniyagala and Upali Gooneratne for the respondent.
Cur. adv. vult.
December 18, 1986.
ATUKORALE, J.
This inquiry arises out of a Rule issued on the respondent, anattorney-at-law, in terms of s. 42(3) of the Judicature Act, No. 2 of1978, in the exercise of the disciplinary powers conferred on thiscourt by virtue of s. 42(2) thereof. The Rule states:
'WHEREAS a complaint has been laid with this Court by MR. ANTHONY CHRISTOPHERALLES of No. 8, Cambridge Terrace, Colombo 7, supported by his affidavit dated 18thJuly 1985 that MR. R. N. J. ARTHENAYAKE, Attorney-at-Law and Notary Public, hascommitted certain acts of malpractice.
AND WHEREAS his complaint discloses that:-
You were the registered Attorney-at-Law of the said Mr. Anthony ChristopherAlles, the Plaintiff in D.C. Mount Lavinia Case No. 325/Spl.;
In or about June 1983 you were entrusted with a draft plaint in English preparedby Mr. A. Mahendrarajah, P.C. for the purpose of instituting the above mentionedaction;
You were required by law to tender to court the plaint in the Sinhala language.You subscribed and filed a plaint in Sinhala as so required but omitting theaverment setting out the jurisdiction of the court to hear and determine the actionwhich appeared as paragraph one (1) in the English draft plaint which had beenprepared by Mr. Mahendrarajah P.C. and was entrusted to you for the purpose offiling action;
You acted in a manner detrimental and/or prejudicial to your client the said Mr.Anthony Christopher Alles in instituting action No. 325/Spl. D.C Mount Laviniawithout complying with the requirement of the law and the instructions of SeniorCounsel to set out the jurisdiction of the court to hear and determine the action ;
You being the registered Attorney of the said Mr. Anthony Christopher Alles thePlaintiff in D.C. Mount Lavinia Case No. 325/Spl. failed to appear on his behalf incourt, more specifically on the 30th day of July 1984 when the said case wascalled in open court; You also failed to take a sufficient interest in havingsummons served on the defendants;
(!) You having acted in a manner detrimental and/or prejudicial to your client in soinstituting and prosecuting the said action did unduly delay the steps for therevocation of the proxy granted to you by the said Mr. Anthony Christopher Alles;
(g) Whilst being the registered Attorney of the said Mr. Anthony Christopher Allesthe Plaintiff in D.C. Mount Lavinia Case No. 325/Spl. you did make accusationsand allegations against your said client and engage in correspondence with him inlanguage unbecoming of an Attorney-at-Law and a gentleman.
AND WHEREAS the written complaint lodged with this Court was forwarded to you onor about the 22nd of July 1985 calling for your observations and you requested time till30th September 1985 to file your observations;
AND WHEREAS you were informed that you were granted time to forward yourobservations by 30th September 1985 and that no further time will be allowed ;
AND WHEREAS you have failed without sufficient excuse to file your observations as sodirected and have thereby shown scant respect to this Court;
AND WHEREAS the said complaint laid by the said Mr. Anthony Christopher Alles andyour subsequent conduct discloses that you have committed acts of malpractice fallingwithin the ambit of s.42(2) of the Judicature Act No. 2 of 1978;
AND WHEREAS this Court has decided that proceedings for suspension or removalshould be taken against you under s.42(2) of the Judicature Act No. 2 of 1978 readwith the Supreme Court Rules 1978;
THESE ARE THEREFORE to command you in terms of s.42(3) of the Judicature Act No.2 of 1978 to appear before this Court at Hulftsdorp. Colombo in person on the 7th dayof July 1986 at 10 o'clock in the forenoon and show cause why you should not besuspended from practice or removed from office of Attorney-at-Law of the SupremeCourt of the Democratic Socialist Republic of Sri Lanka in terms of s.42(2) of theJudicature Act aforesaid'
Accompanying the Rule was a list of witnesses and documents.
According to the respondent the Rule was served on him on22.6.1986. He appeared in Court on 7.7.1986 in response to therule and through his counsel tendered to Court an apology for hisfailure to submit his observations to the complaint of Mr. Alles(hereinafter referred to as the complainant) when he was required todo so by the Registrar of this Court upon the direction of his Lordshipthe Chief Justice. He also requested for a date to show cause. TheCourt then fixed the matter for hearing on 26.9.1986 and directedthe respondent to comply with rule 80(3) of the Supreme Court Rules,1978, on or before 12.9.1986 which required him, if he intended torely on evidence, to file a list of witnesses and documents on or beforethe date fixed by Court but not less than seven days before the date ofhearing with seven copies thereof to be furnished to Court and onecopy to be served on the Attorney-General. The respondent failed tocomply with the direction of Court and/or rule 80(3). By his letter of25.9.1986 addressed to the Registrar of this Court the respondentforwarded his affidavit together with certain annexures whichapparently the Registrar declined to accept as the hearing was fixedfor the next day. On 26.9.1986 the respondent's counsel moved totender this affidavit of the respondent together with the annexures andcraved the indulgence of Court to accept the same. As there were no
objections from either the learned Solicitor-General or learned counselrepresenting the Bar Association of Sri Lanka and in view of theserious nature of the present proceedings and of the consequencesthat may flow therefrom to the respondent, the affidavit and theannexures were, as a matter of indulgence, received and accepted byus although there was no explanation for the respondent's failure tocomply with the direction and/or the rule aforesaid.
In his affidavit the respondent, by way of showing cause against theRule issued on him, stated, inter alia, as follows
'1. I am the affirmant abovenamed.
I appeared before Your Lordships' Court on 7th July 1986 upon the noticeserved on me on 22nd June 1986 (Sunday) by a Process Server and I wasrepresented by Mr. K. Shanmugalingam, Attorney-at-Law, and obtained a dateto show cause.
I tendered an apology through my Counsel to Your Lordships' Court for myfailure to comply and my failure to reply does not mean that I have no respect toYour Lordships' Court.
I have from time to time requested for further time as I was awaiting severaldocuments which would be in my favour and had I complied immediately I wouldnot have had the advantage and/or the benefit of the said documents and thedocuments are:-
the written submissions of the Counsel for the Plaintiff (Mr. A. C. Alles) inDistrict Court of Mt. Lavinia Case No. 325/SPL filed herewith marked 'A' (acopy of the said document "A* was sent by me to the Registrar of theSupreme Court about one month ago).
the Order of the learned District Judge in District Court of Mt. Lavinia CaseNo. 325/Spl. dated 4th July 1986 delivered after the receipt of writtensubmissions of Counsel for the Plaintiff and the Defendant.The said Order is
filed herewith marked "B"(the said Order of the learned Disrtict Judge
was delivered three days prior to the date to show cause-7th July, 1986).
I submit that the Draft Plaint in English was translated into Sinhala by a personwho usually translates all legal documents from English to Sinhala and Sinhala toEnglish and in whom I have always found the translations to be reliable andaccurate at all times.
I compared the translation with the English Draft Plaint in respect of the relevantparagraphs considered necessary and embodying the cause of action and suchother causes but presumed that the Jurisdiction Paragraph would beautomatically in order.
A copy of the Sinhala Plaint and the Draft English Plaint were left by me at theresidence of the Complainant several days prior to the institution of the action.
I did not hear from the complainant thereafter'in respect of the plaint or anycomplaint that there is a problem in respect of the jurisdiction paragraph
It is stated in the affidavit of the complainant at paragraph 20 that the omissionwas discovered only on the date of trial.
I admit that the omission was an oversight and not due to any wilful negligenceor any malpractice and I have not acted in any manner detrimental and/orprejudicial to the plaintiff in the aforesaid action.
I have not delayed in the service of summons but the subject clerk did not issue
summons as there was no affidavit attached to the plaint and the summons tothe defendants were issued only after Mr. A. C. Gooneratne Q.C. appearedbefore the learned District Judge in Chambers and explained to the learnedDistrict Judge that an affidavit is not necessary in this case. Vide proceedings of18.10.83
I issued summons on the Defendants thereafter and the Fiscal Process Server,Balapitiya, in his report dated 24th July 1984 stated that the 1.2,5,8 & 9thDefendants are in Haputale, the 3rd Defendant is in Saudi Arabia, 4th Defendantis in Kalutara, 6th Defendant is in Ja-ela and the 7th Defendant is in Kollupitiyaand on my examining the record subsequently that the Fiscal Report wasmissing from the Court Record and I requested Mr. A. C. Alles to bring thismatter to the Notice of the authorities. He showed no such interest.
I was not present in Courts on the 30th July 1984 when the case was called butI did make arrangements with Mrs. Ranjani Keragala. Attorney-at-Law, to appearin my case but when she was to mark her appearance she found Mr. Earle R. deZoysa Attorney-at-Law appearing in my case and the said Mrs. Keragala did notenter an appearance as it would have embarrassed Mr.De Zoysa. Mrs. keragalatill recently looked after my Roll Work in that Court and attended to all matters inconnection with my legal works.
It is admitted by the complainant I was present in Courts on the 27th August1984. Vide complainant's document marked '8'.
I did not authorize and/or consent to Mr. Earle R. De Soysa. Attorney-at-Lawappearing for the plaintiff in the said case and he had not obtained my consent todo so. Vide my letter dated 2.10.84 to Mr. Alles marked "E". I have sent awritten complaint to the then President of the Bar Association of Sri Lanka (Mr.Herman J. C. Perera, Attorney-at-Law about this conduct and I have notreceived even an acknowledgment to this day).
I sent a motion to revoke my proxy to the complainant and drew his attention toit thereafter as he has failed to comply and thereafter I received a registeredletter from the complainant without any contents therein but he all along was ofthe view that he did sign and return the revocation. I sent the carbon copy of themotion to revoke the proxy which was in my file thereafter. The complainant'sconduct did surprise me and I was compelled to refer to him as an untruthfulperson.
The complaint made by Mr. A. C. Alles dated 8th July 1985 is contradicted bythe written submissions tendered to court as his Counsel refers to a judgment ofa Divisional Bench of three Judges in Hassan v. Peiris (34 NLR 238) and statesthat 'in this case the plaintiff relies on the residence of the 10th defendant withinthe local limits of the jurisdiction of this court to give it jurisdiction" (vide page 3of the plaintiff's written submissions). The complainant Mr. A. C. Alles by hisaffidavit dated 4th August 1986 states-
"I am not responsible for the statements contained in the wntten submissionsof my Counsel'.
Complainant's document marked "L".
It is untenable that a plaintiff who is an Attorney-at-Law and a formerSupreme Court Judge would have not associated himself with hiscounsel in the preparation of the written submissions. He has nowdecided not to associate himself with the written submissions as Ihave sent him a letter to sue him for damages as the writtensubmissions contradict the averments in his affidavit to YourLordships' Court.
I further submit that in the Order of the learned District Judge dated 4th July1986 it is stated at page 1:
'Plaintiff states that in the English version of the plaint it is stated that the10th defendant is residing within the jurisdiction of this Court and that due to anoversight it is not stated in the Sinhala version.'
It is further stated in the said Order:
'I am satisfied that the averments duly stated in the English version havebeen inadvertently omitted from the Sinhala version. In paragraph one of theEnglish version jurisdiction is clearly stated. Therefore I allow the plaint in Sinhalato be amended."
I have not acted in any manner detrimental and/or prejudicial to the plaintiff ininstituting action No. 325/SPL in the District Court of Mount Lavinia and I havenot committed acts of malpractice and have not conducted myself in a mannerunbecoming of an Attorney-at-Law and a gentleman and have not acted in amanner so as not to respect Your Lordships' Court and I therefore state thataction under section 42(2) of the Judicature Act No. 2 of 1978 read with theSupreme Court Rules 1978 should not be taken against me.'
On a perusal of the respondent's affidavit showing cause against theRule issued on him, it is quite clear that he has not only denied thecharges laid against him therein but also has sought to justify hisconduct, the subject matter of the Rule, and even attempted toapportion on the complainant a part of the blame for certain acts ofomission on his part. It therefore becomes necessary to set out insome detail the salient facts (which do not appear to be controverted)relied upon as constituting acts of malpractice upon which the Rule isfounded.
The complainant retained the services of the respondent and dulyappointed him to act on his behalf for the purpose of instituting andprosecuting action No. 325/Spl against the defendants in the DistrictCourt of Mt. Lavinia. In June 1983 a plaint drafted in English byMr. Mahendrarajah, P.C. was given to him for the purpose of filing theaction. The respondent on 5.8.1983 filed in courts a Sinhala plaintsubscribed by him together with a copy of the English draft plaintwhich was not subscribed by him. On 6.8.1983 he informed thecomplainant that he had instituted action on the plaint drafted byMr. Mahendrarajah – vide document 7. The Sinhala plaint, however,did not contain the averment relating to jurisdiction which was the firstaverment in the draft English plaint.
The Sinhala plaint was accepted by court which ordered, owing to amisconception of the correct legal position, that an affidavit be filed insupport of the claim for a permanent injunction contained in the prayerto the plaint. No order was made at that stage for the issue ofsummonses on the defendants. On 18.10.1983 Mr. A. C.Gooneratne, Q.C. saw the learned judge in chambers and explainedthat summonses could issue without an affidavit whereuponsummonses were ordered to be issued on the defendants returnable21.1 1.1983. They were in fact tendered to court only on 27.2.1984when the court directed them to be issued returnable 26.3.1984. On26.3.1984 the 1st defendant appeared in court in response to thesummons served on him. The 1st to the 9th defendants were notpresent and as there was no return from the fiscal relating to theservice of. summonses on them the court directed the case to becalled on 30.9.1984. On that day the complainant was present incourt but not the respondent. Finding that the respondent was absentthe complainant retained the services of Mr. Earle de Zoysa, anAttorney-at-Law practising in the Mt. Lavinia courts, to watch hisinterests and to obtain an early date for the re-issue of summonsesand to ensure that they were served on the 1 st to 9th defendants.This was done by Mr. de Zoysa. Summonses were reported by thefiscal to be served personally on them and they appeared in court on
27.8.1984 on which date the respondent attended court. Thecomplainant by his letter of 28.8.1984 (document 8) informed therespondent of this position and the steps taken by Mr. de Zoysa andthat Mr. de Zoysa would continue to watch his interests and report tohim the progress of the case. This letter appears to have been theprimary cause of the displeasure and the differences that subsequentlyarose between the complainant and the respondent. The respondenttook objection to the complainant's conduct in having retained theservices of Mr. de Zoysa without reference to him and in the course ofhis reply (document 9) he stated that he had no objection to Mr. deZoysa watching the case on behalf of the complainant but that hecould extend it further by stating that the complainant would have torevoke the proxy to enable Mr. de Zoysa or any other lawyer of hischoice to appear for him. He also expressed surprise that summonseshad been served personally on the 1 st to the 9th defendants who,according to the earlier fiscal report, had left their residences to theirplaces of business in various parts of the country and one of whomwas in Saudi Arabia. He stated that he would pursue this matterfurther particularly if it was the same fiscal officer who made bothreports to court. He concluded by stating that he would forward therevocation papers for the complainant's signature. The next letterplaced before us is document 10, a letter written by the respondent tothe complainant, in which the respondent, referring to the wishexpressed by the complainant in his letter of 24.9.1984 that therespondent should revoke the proxy granted to him, states, inter alia,that he would be doing so with pleasure. He also forwarded therewiththe revocation papers with a request to the complainant to return thesame to him duly signed to enable him to file them in court so that hewould have "the satisfaction of knowing that it was done and not waitto hear about it". This letter is dated 25.10.1984. The complainantalleges that he replied to this letter by his letter of 29.10.1984(document 12). This reply, which also, as usual, has been sent underregistered post to the respondent, acknowledges receipt of therespondent's letter of 25.10.1984 and states that the complainant isreturning there with the revocation papers duly signed by him andreminds the respondent that in doing so he is only giving effect to thesuggestion contained in the respondent's letter (document 9)informing him that the respondent was taking steps to forward therevocation papers for his signature. The complainant makes thefollowing further observations
" 1. I have no objections to your taking action with the appropriate authorities toinvestigate the alleged tampering with the Court Record. I agree that if theseallegations are well founded it is a serious matter that needs probing and suitableaction taken against the parties concerned.
2
When you advised mp that I had to pay extra stamp duty I was surprised as I hadnot prayed for an interim injunction in my plaint. It was I who contacted Mr.Gooneratne and requested him to make the necessary representations on mybehalf to the Judge which he successfully did. Mr. Gooneratne refused to accepta fee from me.
I asked Mr. Earle de Zoysa to watch my interests in the case since in spite ofrepeated requests to you over the telephone you did not seem to take an interestin my case. You were not present in Court on July 30 and it was due to Mr.Zoysa's efforts that an early date was obtained for the re-issue of summons.
5 ’
The next letter before us is the letter dated 27.12.1984 sent by therespondent to the complainant (document 13) in which he states,inter alia, as follows:
'I have agreed to revoke your proxy in the above case You have not
revoked my proxy so farI would like to finalise this matter as I do not wish
to act for you anymore’
To this the complainant replied by his letter of 2.1.1985 (document14) stating:
'I am surprised at your letter of December 27. 1984. To your letter of October 27.
1984 which conveys the same request to that contained in your letter of December. 27.1 sent you a prompt reply on October 29th enclosing the revocation papers dulysigned by me. A photostat copy of my letter and a copy of the registered postalreceipt is enclosed for your information.
I must assume in the absence of my letter and the revocation papers being returnedto me that you have duly received these documents.
If you have misplaced the revocation papers please prepare fresh papers and bringthem to me personally to be signed and returned to you to be filed in Court. I cannottake the risk of communicating with you even by registered post after what has ,transpired which has caused me considerable annoyance and embarrassment. I shall
also thank youto make an appointment with me either by telephone or letter
to fix a date and time for the signing of fresh revocation papers. I should like to finaliseall matters with you within a week of the receipt of this letter."
The respondent replied by his letter dated 18.01.1985 (document15):
"I acknowledge the receipt of your letter dated 2nd January 1985 without the usualsalutation and the ending of a letter in the usual form. Rather surprising that a man ofyour education and as a man who held a high position in our Supreme Court shouldconduct himself in such a petty minded manner.
You further surprise me by denying the receipt of my letter dated 25th October1984 which in particular contained the Revocation papers. That’s dishonesty.
Enclosed please find another revocation with my signature therein. You can hand itover to your next Attorney-at-Law who will file the Revocation. Formal Revocationand his Proxy in the above case. I trust you will do that on receipt of this letter as it ismy wish that I close this chapter with you and whilst doing so regretting that youbecame my client even for a short period.
Lastly. I must state that under no circumstances you should have instructed Mr.Earle R. de Zoysa. Attorney-at-Law. to appear in the above case and he should nothave appeared even on a calling date without my instructions. Mr. de Zoysa has sofar failed to disclose to me that he appeared for you in the above case."
Acknowledging receipt of the above letter, the complainant wrote tothe respondent letter dated 28.01.1985 (document 16) whichcontained, inter alia, the following:
"A – This is the first occasion in my entire career that an allegation of dishonestyhas been made against me and that too by a professional man. Your allegationis false, baseless and made with no sense of responsibility. In order that youmay realise the utter falsity of your allegation I will quote from thecorrespondence between us in regard to your allegation that I have denied thereceipt of your letter dated October 25 which contained the original revocationof the proxy. Let there be no ambiguity or quibbling on this issue-
– On October 29. 1984 I sent you by registered post the original of the
revocation of the proxy duly signed together with a letter whichcommenced as follows-
7 am in receipt of your registered letter of October 25 and amreturning the revocation papers duly signed by me'
You have received my letter and original revocation motion since thesedocuments were not returned to me by post
– On January 2. 1985 I wrote to you by registered post in the following
terms-
'.To your letter of October 27 (this is a typing error for October 25)which conveys the same request to that contained in your letter ofDecember 27 I sent you a prompt reply on October 29 enclosing therevocation papers duly signed by me'.
With my letter I sent you a photostat copy of my letter of October 29containing again the statement referred to in (1) above. This registeredletter of January 2 has been acknowledged by you in your letter of 18January 1985.
3 – In the face of the material referred to in (1) and (2) above you havestated in the second paragraph of the present letter of January 18 asfollows –
'You further surprise me by denying the receipt of my letter dated 25thOctober 1984 which in particular contained the revocation papers.That's dishonesty'.
When therefore you wrote your letter of January 18 you had information that Iacknowledged receipt of your letter of October 25, 1984 and the original revocationnotice. How can you in the face of these incontrovertible facts which I have set downin writing be surprised and make such a false, wicked and irresponsible allegation ofdishonesty against me? The surprise is on my part that you have so blatantly andrecklessly sought to make such a statement in writing against me. I must demand animmediate written apology from you withdrawing this false allegation. Otherwise Ishall be compelled to have recourse to other measures to safeguard my honour andreputation.
B –
C – If I had not asked another Attorney-at-Law to watch my interests in Court Iwould still be looking for some of the defendants in various parts of the countryand in Saudi Arabia to have the summons served on them.
I will expect a written apology from you forthwith for what you have falsely stated inthe second paragraph of your letter of January 18 and I shall be more than glad tosever relations with you thereafter and consider the chapter closed. This is the firstoccasion in my life that I have become a litigant and my first experience of a lawyerretained by me has most distressing and only forcibly demonstrated to me theunfortunate plight which many a client suffers at the hands of some lawyers.’
To this letter, which is the last in the series of correspondencebetween the complainant and the respondent, there was no reply.Thereafter the complainant signed a fresh proxy authorising Mr. Earlede Zoysa to act on his behalf in the case. The case was taken up fortrial on 29.5.1985 when counsel for the defendants raised anobjection to the jurisdiction of the court to hear and determine theaction. Counsel for the complainant then moved to amend the plaint.This was objected to by counsel for the defendants and the matterwas fixed for inquiry on 9.7.1985 on which date, owing to the factthat the Judge was indisposed, the inquiry was postponed for3.9.1985. Pending this inquiry, on 19.7.1985, the complainantlodged his complaint in this Court alleging professional misconduct onthe part of the respondent. His affidavit of complaint is dated18.7-1985 and contains substantially a statement of the facts
(supported by documents including the letters referred to above)forming the basis upon which the Rule has been laid against therespondent.
On 4.8.1986, after the Rule was served on the respondent, thecomplainant filed an additional affidavit with two annexures marked "L"and "M". Document marked "L" is a letter dated 24.5.1985 sent bythe respondent to the Administrative Secretary, Bar Association of SriLanka, in connection with a complaint made by the complainant's sonagainst the respondent to the Bar Association. Document "M" is aletter dated 3.6.1986 sent by the respondent to the complainantthreatening to take legal action against the latter for swearing theaffidavit of complaint upon which the present proceedings wereinitiated which, the respondent states, contains averments ■inconsistent with the written submissions filed in the District Court onbehalf of the complainant by his registered Attomey-at-Law. This letter(M) reads as follows:
'You had sworn an affidavit against me to the Chief Justice of the Supreme Courtdirectly in July 1985 in respect of the Sinhala Plaint filed in the District Court of MountLavinia Case No. 325/SPL.
You had thereafter through your Registered Attorney-at-Law in the above case filedwritten submissions in the above case which is different from the averments in youraffidavit.
I obtained a certified copy of the written submissions from Courts and tendered sameto the Registrar of the Supreme Court and a photocopy of same was tendered to theAttorney-General.
I have already handed over the aforesaid documents and several other documentsconnected thereto to my lawyers who will be sending you a letter of demand asinstructed by me claiming damages against you and in the event of your failure tocomply with the demand, legal proceedings will be instituted by me against you torecover damages from you.'
In reference to this letter "M" the complainant, in his additionalaffidavit, states that his original affidavit was filed in this Court in July1985 and that his counsel made written submissions in the DistrictCourt much later to persuade the court to allow his application for theamendment of the plaint and that he (the complainant) is notresponsible for the statements contained in the written submissions ofhis counsel. In regard to the letter "L" the complainant, in his additionalaffidavit, states that it contains two false allegations made by the
respondent against him, namely, that he failed to send to therespondent the motion revoking the proxy in 1985 and that he wasready to condone a dishonest act of a court officer. The relevantpassage in letter "L” reads as follows:
'In 1983 Mr. A. R. Alles informed me that his father, Mr. A. C. Alles, wanted me tofile an action on his behalf against some persons for an alleged breach of copyright ofhis book reporting famous trials. The breach was alleged to have been committed bythe producers of the film 'Dadayama". Mr. Alles gave me a draft plaint which hestated was prepared by Mr. A. Mahendrarajah. Attorney-at-Law (a recently appointedPresident's Counsel) and that he also consulted Mr. K. N. Choksy, Attorney-at-Law(now President's Counsel). He wanted me to file the plaint in the District Court of Mt.Lavinia. It was filed as instructed and was numbered 325/Special. Summon; wasissued on the Defendants and the returnable date was on the 30th July 1984. TheFiscal, Balapitiya had reported that the 1 st, 2nd, 5th, 8th and 9th Defendants arereported to be in Haputale, the 3rd Defendant in Saudi Arabia, the 4th Defendant inKalutara, the 6th Defendant in Ja-ela and the 7th Defendant in Kollupitiya. Iaccordingly informed Mr. A. C Alles of this by letter. Mr. A. C. Alles intimated to meby his letter dated 28th August 1984 that he had retained Mr. E. R. de Zoysa.Attorney-at-Law who is practising mainly in Mount Lavinia Courts, to watch hisinterests. He also informed me that Mr. E. R. de Zoysa had obtained a short date toserve summons and that he had effected service of summons. I once more checkedthe record and found that the Fiscal Report referred to earlier was missing from therecord in the Mt. Lavinia Courts. I made an application to the District Judge,Balapitiya, and obtained a copy of the aforesaid Fiscal Report dated 24.7.1984. Ithereafter wrote to the Registrar of the District Court, Mt. Lavinia on 13.12.1984and asked him for a copy of the Fiscal Report of 24.7.1984 but was informed thatthere was no such report.
I thereupon informed Mr. A. C. Alles that the officers of the Court appeared to haveacted dishonestly and that I intended reporting this to the District Judge and theMinistry of Justice to take appropriate action. I also indicated to Mr. Alles that I wouldexpect him to co-operate with me in this matter to enable the true facts to beascertained. However, in view of the attitude taken by Mr. A. C. Alles (I informed him)that I would be revoking his proxy and would no longer act for him. This was inSeptember 1984.1 sent him the motion to revoke the proxy, but he failed to return it.I thereafter sent him the carbon copy of my original revocation, and informed him that
his new Attorney could file it in Court. Mr. A. C. Alles's reaction to an
Inquiry about the Fiscal Report was surprising. I could not understand his attitude as aretired Supreme Court Judge. Mr. A. R. Alles states that he had discussed this matterwith his father 'who is much distressed that a member of the honourable professionshould have acted in this dishonourable manner.' It seems strange that his father whowas ready to condone a dishonest act of a Court Officer was talking of ethics of theprofession"
In addition to the above material, part of which, it will be observed,comprises of matter placed before this court after the date of the Rule(9.6.1986), it is also necessary to refer to the respondent's failure tosubmit his observations to this court upon the complaint lodgedagainst him, though called upon to do so. On a direction by HisLordship the Chief Justice the Registrar of this court forwarded to therespondent a copy of this complaint and requested him to submithis observations thereon to His Lordship the Chief Justice within 3weeks. This letter is dated 22.7.1985. The respondent by his reply of
addressed to the Registrar informed him that the letterreached his hands only 4 days ago and requested for time till
to submit his observations. The Registrar then wrote tohim on 11.9.1985 stating that he has been directed by this court togrant the respondent time till 30.9.1985 and that no further time willbe granted. On 21.2.1986 the respondent wrote to the Registrarenclosing a certified copy of the written submissions tendered to theDistrict Court of Mt. Lavinia on behalf of the complainant (the plaintiffin the case) and requesting for further two weeks' time to send in hisobservations "in view of the contents of the written submissions". Tothis letter the Registrar replied stating that he has been directed by thiscourt to draw the attention of the respondent to his letter of
informing the respondent that no further time would begiven to him beyond 30.9.1985 to forward his observations.
At the hearing before us learned President's Counsel for the BarAssociation did not, (I think it was not necessary for him to do so) seekto make any submission or express any opinion on the correctness orotherwise of the facts as alleged in the Rule. He confined himself toone submission, namely, that the facts set out therein, even ifaccepted, did not constitute in law a malpractice in terms of s.42(2)of the Judicature Act, No. 2 of 1978. Learned Queen's Counsel forthe respondent, too, did not appear to me to seriously canvass thefacts set out in the Rule. His main contention was also that the factsdisclosed in the Rule fell short of establishing any malpractice on thepart of the respondent. This legal submission advanced by bothcounsel will be considered by me later on in the course of my order.But for a full and proper appreciation of the implications arising out ofthe facts alleged in the Rule I think it very necessary that I shouldrecord my findings of facts together with the reasons therefor' on thematerial placed before us by and on behalf of the complainant as wellas the respondent.
They are as follows:
The respondent has admitted his omission to aver in the Sinhalaplaint which is the official plaint, facts setting out the jurisdictionof the Mt. Lavinia Court to hear and determine the action, whichis a positive requirement of the law – vide s.35 of the CivilProcedure Code. This omission, though unintentional, cannotbe brushed aside as being due to an oversight on the part of therespondent as averred by him in his affidavit. In my view it wasdue to none other than his utter negligence. This is the onlyreasonable inference that can be drawn from his statement inthe affidavit that he compared the Sinhala translation with theEnglish draft plaint in so far as the paragraphs relating to thecause of action were concerned but did not do so in regard tothe averment relating to the jurisdiction which, according tohim, he presumed to be 'automatically in order'. There is in thisstatement an implied admission by the respondent that hefailed to carry out his bounden duty as the registeredattorney-at-law of the plaintiff of perusing fully and carefully,the several paragraphs in the plaint to which he had subscribedhis signature and which constituted the legal foundation of theplaintiff's claim. It is not a duty that an attorney-at-law candelegate to any one else. In a matter of such grave importance itcan never be open to an attorney-at-law to disown responsibilityby stating that he had faith in his clerk or translator, howeverreliable or efficient he may have found him to be. The failure oromission to peruse diligently a legal document such as a plaintbefore it is filed by him in court constitutes a breach of dutywhich he owes not only to his client but also to court. Therespondent's further statement in his affidavit that he left a copyof the Sinhala plaint at the complainant's residence several daysprior to the institution of the action but that he received nocomplaint or information from him concerning any problemabout the averment relating to jurisdiction, far from providingany excuse for his lapse, appears to me to savour of anunwarranted attempt on his part to foist the blame or partthereof on the complainant, his client.
A period of about 2 months or more has lapsed between thedate of the institution of the action and the order of court forthe issue of summons on the defendants. The respondent in hisaffidavit seeks to attribute this delay to the fact that the subjectclerk did not issue summons as there was no affidavitaccompanying the plaint. It may well have been that, accordingto the common practice, the subject clerk did make the minuteand the Judge signed it thereafter. But once it is so signed itbecomes the order of court. A subject clerk has no right to issueor to refuse to issue summons except in compliance with theorder made by court. Thus the order made in the instant casewas an order of court refusing to order the issue of summonseson the defendants upon the acceptance of the plaint for thereason that there was no affidavit accompanying the plaint. Thisorder was clearly an erroneous one since the plaint had notprayed for an interim injunction. It was incumbent on therespondent on becoming aware of this order to have takenprompt and diligent steps to appraise the court of the correctposition and to have moved for the issue of summonses. Aregistered attorney-at-law has an overriding duty to court totake such steps as are necessary to ensure that its orders are incompliance with correct legal procedures. In the instant casethe respondent without making any attempt to ascertain forhinnself the correctness of the order made by court called foradditional stamp duty from his client for an affidavit which wasunnecessary. I accept the uncontradicted statement in thecomplainant's affidavit to this court that it was he whorequested Mr A. C. Gooneratne, Q.C to represent matters tocourt on his behalf in consequence of which the court directedthe issue of summonses without an affidavit. I am of opinionthat the delay of over two months was due to the lack ofprudence and diligence on the part of the respondent.
The respondent failed to appear in court on behalf of his clienton 30.7.1984 which was the date fixed for the filing of theanswer of the 10th defendant and for the return of the Fiscalregarding the service of summons on the other defendants. Therespondent, in his affidavit, whilst admitting that he was notpresent in court on that day, states that he had madearrangements with Mrs. Ranjani Keragala. Attorney-at-Law, tolook after his work in that court and that when she was about tomark her appearance in the case on that date she foundMr. Earle de Zoysa already appearing in the case and she didnot therefore enter an appearance as it would have embarrassedMr. de Zoysa. This explanation of the respondent has to beconsidered and evaluated in the light of all the attendantcircumstances. By his letter of 28.8.1984 (document 8) thecomplainant informed the respondent that he retained Mr. deZoysa to watch his interests in the case on 30.7.1984 and thathe was most helpful and succeeded in getting summons servedon the defendants. This letter evoked a vehement protest fromthe respondent who found fault with the complainant for dealingthrough other attorneys without reference to him and eventhreatened to forward the revocation papers to him. But it isvery significant that in this reply (document 9) the respondentoffers no explanation whatsoever for his non-appearance incourt on that date. Nor is there any mention of the fact that hehad requested Mrs. Keragala to appear in the case or that shewas present and was ready to mark her appearance. Not even inhis letter of 25.10.1984 (document 10) is there any referenceto this alleged arrangement with Mrs. Keragala. In fact the onlyreference thereto is contained in his affidavit filed belatedly inthis court on 26.9.1986. In my view the explanation adducedto this court for his failure to appear in the District Court on30.7.1984 is unconvincing and therefore unacceptable.
The respondent had unduly delayed the steps for the revocationof the proxy granted to him by the complainant. Although by hisletter of 29.8.1984 (document 9) the respondent informed thecomplainant that he would forward the revocation papers for hissignature, they were in fact forwarded only on 25.10.1984(document 10). The complainant has maintained that he repliedto the respondent enclosing these papers duly signed by him toenable the respondent to file them in court by his letter of29.10.1984-(document 12). On a reading of therespondent's letter of 18.1.1985 (document 15) it wouldappear that the revocation papers were not returned to him bythe complainant. According to the correspondence that haspassed between the parties the respondent's position appearsto have been that he did not receive these revocation papers,which, according to the complainant, he forwarded to therespondent under registered cover by his letter of 29.10.1984.However in his affidavit filed in this court the respondent statesthat he received a registered letter from the complainant butthat it was an empty letter without any contents. This, in myview, cannot but be a reference to the registered letter sent by
the complainant on 29.10.1984 addressed to the respondent.So the only question is whether it was an empty letter or not. Imight mention straightaway that in the correspondencebetween the parties there is no reference, at any stage, by therespondent of having received by registered post from thecomplainant a letter without any contents in it. If he did receivesuch a letter it would have been extremely unlikely that therespondent would have allowed it to pass without comment, atleast, in his last letter wherein he has made accusations ofpettimindedness and even dishonesty against the complainant.Learned Solicitor-General described the respondent'sstatement in his affidavit that he received an empty letter as ahalf truth; in which event, it must necessarily be also a halfuntruth, although I did not hear him say so. Whatever that maybe, I am firmly of the view that this statement in his affidavit hasbeen made by the respondent with a view to wriggling himselfout of the otherwise defenceless charge that he was solelyresponsible for unduly delaying the steps or the revocation ofthe proxy.
The respondent as the registered attorney-at-law of thecomplainant has made accusations and allegations against andengaged in correspondence with his client in language which isunbecoming of an attorney-at-law and a gentleman. On thisaspect of the matter it would, I think, suffice if I refer to thepassages in the respondent's letter of 18.1.1985 (document15) reproduced by me and which contains the accusations ofpettimindedness and dishonesty against the complainant. It ismanifest that the language employed by the respondent inthose two paragraphs is unrestrained and undignified. Anallegation involving moral turpitude is founded on one's belief(however honest it may be) of turpitudinous conduct on the partof another. The very fact and thought that one may be wrong informing such a belief is of itself sufficient reason to cause one todesist from giving expression to such a belief. Such anaccusation involving as it does a grave breach of moralstandards and discipline on the part of another should,whenever possible, be avoided. It should never be madeunreasonably or irresponsibly. No man of good repute (and thisincludes an attorney-at-law) should permit himself to castingmoral aspersions on another, whether high or low, for which
there is no cogent and sufficient basis. The imputations madeby the respondent in the instant case rest on such slender, andeven baseless, grounds that I find it difficult to resist theconclusion that they were made not for the reason that therespondent saw any justification in making them but toembarrass, if not humiliate the complainant. The referenceto the position the complainant once held in the SupremeCourt was totally irrelevant and unwarranted. The allegation ofdishonesty is demonstrably baseless. The respondent himselfby his letter of 18. L1985, in which the allegation was made,acknowledged receipt of the complainant's letter of 2.1.1985wherein the complainant specifically stated that in response tothe respondent's letter dated 25.10.1984 (mistakenly given as27.10.1984) he sent a prompt reply on 29.10.1984 returningthe revocation papers after signature. In the face of this letter of2.1.1 985 (the receipt, of which the respondent acknowledged)it was preposterous for the respondent to have alleged in hisletter of 18.1.1985 that the complainant was denying receiptof the respondent's letter of 25.10.1984 which contained therevocation papers for the complainant's signature. The positionwas clarified and put beyond any manner of doubt by thecomplainant in his final letter of 28.1.1985 (document 16) towhich there was neither a reply nor even an acknowledgment bythe respondent. I am quite satisfied that the accusation ofdishonesty levelled by the respondent against his client, thecomplainant, was completely baseless. It has been maderecklessly and irresponsibly. It was unbecoming and unworthyof the respondent as an attorney-at-law to have made such abaseless charge against the complainant, who was his client.
I might pause here for a moment to state that I have basedmy findings on the contents of the documents as a whole whichhave been read before us including the explanation made by therespondent in his belated affidavit of 25.9.1986 since it is myview that a matter of this nature has to be judged upon aconsideration of all the facts and circumstances placed beforeus. I have, however, for this purpose, refrained from taking intoconsideration the contents of any document tendered to courtin support of the Rule after the date of its issue.
I will now proceed to consider the consequences of the failureand/or omission on the part of the respondent to make the jurisdictionaverment in the Sinhala plaint, to appear in Court on 30.07.1984 andto take steps without delay, for the revocation of the proxy granted tohim. It is not denied and there is little doubt that they resulted not onlyin unnecessary delay and expense to the complainant but also inplacing the entire claim of the complainant in real jeopardy of beingdismissed. I therefore hold that in instituting and prosecuting theaction in the District Court of Mount Lavinia the respondent has actedin a manner detrimental and/or prejudicial to the interests of his client,the complainant. I am thus of the view that the matters enumerated inparagraphs (a) to (g) of the Rule have been established except theallegation relating to the respondent's failure to take sufficient interestin having summons served on the defendants since it is the duty of theFiscal to effect service of summons for which the respondent cannotbe held responsible.
The respondent has failed without sufficient cause to file hisobservations on the complaint that was made against him (a copyof which was forwarded to him) although he was directed to doso by the Registrar of this court upon a direction made by HisLordship the Chief Justice. By his letter of 03.09.1985 therespondent asked for and obtained further time till 30.09.1985but yet failed to comply with the direction of this court. At thatstage he adduced no reason or explanation for his failure. Heremained silent until 21.02.1986 when he wrote to the Registrarenclosing a copy of the written submissions tendered on behalf ofthe complainant in the District Court and asking for further twoweeks' time "in view of the contents of the written submissions".In his affidavit to this court he states that his failure to comply wasdue to the fact that he was awaiting certain documents, namelythe written submissions aforementioned and the order of thelearned District Judge on the application to amend the plaint,which were advantageous to him and the benefit of which hewould not have had if he filed his observations earlier. Thesedocuments, in my view, bore no relevance to the observationsthat were called for by this court, which were in respect of thestatement of specific facts (all within the knowledge of therespondent himself) contained in the complainant's affidavit tothis court. The respondent was made aware that his observationswere called for upon a direction made by His Lordship the Chief
Justice pertaining to a matter of his professional conduct. Hecould not have failed to appreciate the fact that his observationswere required, without delay, to enable this court to determinewhether a Rule should or should not issue against him upon theallegations made against him. In so far as this court wasconcerned, the matter was one of utmost importance andurgency. Although in his letter of 21.02.1986 he asked for twomore weeks' time to file his observations, eventually he did not filethem at all. These circumstances disclose that the respondent didnot have due respect and regard for this court.
I have set out above in detail my findings on the facts. I shall nowturn to the legal submissions of respective counsel. It is conceded thatthe law governing this matter is contained in the Judicature Act, No. 2of 1978, which came into force on 02.07.1979. S. 40(1) of this Actempowers this court, in accordance with rules for the time being inforce, to admit and enrol as attorneys-at-law 'persons of good reputeand of competent knowledge and ability'. S.42(2) empowers thiscourt to suspend from practice or remove from office every personadmitted and enrolled as an attorney-at-law who shall be guilty of 'anydeceit, malpractice, crime of offence'. The charge against therespondent is that he committed the acts enumerated in the Rule andthat he is thereby guilty of a malpractice. My finding is that he hascommitted those acts except one. The question of law is whether theacts which the respondent has committed amount to a malpracticewithin the ambit of s.42(2) of the Judicature Act. It is, I think, properto state at once that no allegation of dishonesty was made against therespondent in the conduct of his affairs with the complainant. Onbehalf of the Bar Association it was contended by learned President'sCounsel that the word, in its context, means professional misconductwhich is rooted in dishonour or moral turpitude; that malpracticeconstitutes the failure on the part of an attorney to practise hisprofession in an honourable or reputable way and that it imports orinvolves professional conduct of a dishonourable or turpitudinousnature. He contended that although every act of malpractice amountsto professional misconduct yet every act of professional misconductdoes not amount to a malpractice. He submitted that professionalmisconduct not involving moral turpitude falls short of a malpractice.He further maintained that negligence per se (however serious it maybe) would not amount to malpractice. He also drew our attention tos.35 of the Administration of Justice Law, No. 44 of 1973, which
immediately preceded s.42(2) of the Judicature Act, and pointed outthat that section enlarged the scope of the disciplinary powers of thiscourt to punish an attorney who was guilty of any deceit, malpractice,offence or conduct unworthy of an attorney-at-law. S.35, he stated,was wider than s. 17 of the Courts Ordinance which preceded it andwas introduced deliberately to catch up misconduct not involvingmoral turpitude. He submitted that as the legislature had omitted thewords 'other conduct unworthy of an attorney-at-law' in s.42(2) ofthe Judicature Act, it was clear that the word 'malpractice' had to begiven a restricted meaning so as to apply only to such misconductwhere the element of mens rea was present. He further contendedthat the word 'deceit', being as it were the key-word, tainted ortarnished the meaning of the words following it, namely, 'malpractice,crime or offence', with the flavour of a turpitudinous nature. Heconcluded that in this view of the law the Rule did not disclose anymalpractice on the part of the respondent. Learned Queen's Counselfor the respondent, relying on the definition of the word 'malpractice'in the Concise Oxford Dictionary (6th Edition, 1976), submitted thatmalpractice being the opposite of good practice connotes a'wrong-doing' in law. It signifies an illegal or unlawful action by anattorney for his own benefit. He maintained that to constitute amalpractice, the act must be a wilful act which is contrary to law anddone by an attroney in the course of his practice for his own benefit.On the other hand learned Solicitor-General, who appeared in supportof the Rule and who was good enough to make available to us thebenefits of his valuable research into the history of the disciplinarypowers of the Supreme Court, himself relying on the definition of thework 'malpractice' contained in Black's Law Dictionary (Revised 4thEdition, 1968), maintained that malpractice means an act ofprofessional misconduct or an unreasonable lack of skill or fidelity inthe course of professional duty. He submitted that the groundsspecified in s.42(2) of the Judicature Act warranting the exercise ofdisciplinary power are all species of misconduct, that malpractice is an
act of professional misconduct and that the words 'any
malpractice' would embrace every act of professional misconduct,whether turpitudinous or not and whether it is done wilfully or■ negligently. He cited several local as well as English decisions insupport of his submissions. He also urged that in determining whetherthe respondent is guilty of malpractice or not, we should have regardto the facts and circumstances taken as a whole and not in isolation.Viewed in this light of the law and facts, he submitted that the entire
course of conduct of the respondent was most deplorable andunbecoming of an attorney. He thus maintained that the charge ofmalpractice had been made out against the respondent.
The Royal Charter of 1801, by Article XXIV, conferred on theSupreme Court of Judicature the authority and power 'to approveadmit and enrol such and so many persons, being properly qualifiedaccording to such rules and qualifications as the said court shall forthat purpose make and declare, to act both as advocates and
proctors, or in either of such capacities, in the said courtas to the
said Supreme Court shall seem meet, and the said advocates andproctors, on reasonable cause to remove ….' It contained no expressprovision for the suspension of advocates and proctors from practice.The Royal Charter of 1833, by Article 17, authorised and empowered' the Supreme Court 'to admit and enrol as advocates or proctors in thesaid Supreme Court, all such persons being of good repute as shallupon examination by one or more of the said Justices of the said
. Supreme Court, appear to be of competent knowledge and ability'
This Charter, however, contained no express provision for eitherremoval or suspension of advocates or proctors. The CourtsOrdinance (Chap. 6, Vol. 1, L.E.), which came into force on2.8.1890, empowered the Supreme Court to admit and enrol asadvocates or proctors persons of good repute and of competentknowledge and ability. It also provided for the suspension frompractice or removal from office any advocate or proctor who shall beguilty of any deceit, malpractice, crime or offence. This Ordinance wasrepealed by the Administration of Justice Law, No. 44 of 1973,which, as indicated above, by s.35 provided for the suspension andexpulsion of attorneys who shall be guilty of any deceit, malpractice,offence or other conduct unworthy of an attorney-at-law. This Law bys.33 retained the same provisions as existed under the CourtsOrdinance in regard to the admission and enrolment of attorneys.Chapter 1 of this Law which contained sections 33 and 35 was' repealed by the Judicature Act which re-introduced substantially thesame provisions that existed under the Courts Ordinance for theadmission and enrolment of attorneys as well as for their suspensionand expulsion. The legal grounds relating to the exercise of thedisciplinary jurisdiction of this court being the same under the CourtsOrdinance as well as the present Judicature Act, some guidance onthe matter arising for our determination in this case may be obtainedfrom decisions of the Supreme Court under the Courts Ordinance
which afford illustrations of instances of malpractice and indicate thenature and character of the misconduct which has been held toamount to malpractice.
In the case of in Re Edwin Beven (1) the respondent was required toshow ccuse why he should not be suspended from practice on thecharge that he has been guilty of malpractice in that he furnished to hisclients books containing blank letters of demand which bore hissignature and permitted them to fill in the said letters of demand thenames of the debtors and the amount of claim against them and so touse them or suffer others to use them as if they actually emanatedfrom him. He stated in defence that the practice of leaving such signedletters of demand in the hands of standing clients to be filled by themas the necessity arose was not uncommon. The Supreme Court tookthe view that this practice was wrong, 'reprehensible', 'improper' and'unprofessional cond"cc'. He was suspended from practice for aperiod of three months. It is to be noted that no moral turpitude wasalleged or disclosed in the conduct of the respondent which wascondemned by court. In the case Re Siman Appu's Plaint (2) a rulewas issued on a proctor to show cause why he should not be struckoff the roll for improper conduct in that he countersigned a privateplaint presented to the Police Court of Kegalle which had been drawnup by a petition drawer and not by himself. He explained thecircumstances under which he came to countersign the complaint andstated that he was unaware that his conduct in signing a plaint draftedor drawn by any person other than the proctor countersigning wasunprofessional. He was suspended from practice for a period of threemonths for 'unprofessional conduct' which obviously could only havebeen on the basis that he was guilty of malpractice, though the chargedid not so specify. In the case of In re a Proctor (3) a proctorappropriated for his use certain monies belonging to his client. Therewas no evidence to show that in doing so he had any dishonest orcriminal intention. His conduct appeared to be the result of greatcarelessness and negligence on his part of his client's interests and afailure to appreciate his duty in respect of trust funds received by himon his client’s behalf. The court held that the appropriation of hisclient's money was 'an act of professional misconduct on his part, amalpractice within the meaning of s.1 7 of the Courts Ordinance'. Hewas suspended from practice for a period of six months. InSolicitor-General v Jayawickreme (4) an advocate's professionalconduct in dealing directly with a ! ‘y client without the intervention of a
proctor was held to be improper. He was held to be guilty ofprofessional misconduct amounting to malpractice. In In re S.Dharmalingam (5) the respondent, a proctor, was given a sum ofRs. 75 to be deposited as survey fees in a partition action. He failed todo so and misappropriated the money. He was held to be guilty ofmalpractice. These decisions of the Supreme Court do not seem tosupport the contention advanced by learned President's Counsel forthe Bar Association that there can be no malpractice unless the act ofprofessional misconduct involves or is grounded in dishonour orturpitude. Nor do they lend support to the contention of learnedQueen's Counsel for the respondent that malpractice postulates anillegal or unlawful act, a transgression of the law. I also see nojustification for holding that the word 'deceit' (which learnedPresident's Counsel labelled as the key word) taints the meaning of thewords that follow it. If his contention is correct, no order ofsuspension or expulsion of an attorney can be made unless the crimeor offence of which he is guilty involves an element of turpitude. Noauthority was cited in support of this proposition. On the contrarythere is a decision which militates against such a proposition. In thecase of In re a Proctor (6) a proctor was charged with and convicted ofthe offence of escaping from lawful custody, an offence punishableunder s. 220A of the Penal Code. His detention was purely upon anorder issued by the Governor under regulation 1 of the Defence(Miscellaneous No. 3) Regulations and not in consequence of aconviction on a criminal charge. The offence he committed, thoughcriminal, did not involve any moral turpitude. He was suspended frompractice for a period of two years as his conduct was considered to bemost reprehensible and he, as an officer of the court, had shown adeplorable example.
The legal position in England in regard to conduct of solicitors whichwould warrant an expulsion from office or a suspension from practiceis summarised in Halsbury's Laws of England, 4th Edition, Vol. 44 atpara. 297 page 222:
"Non-statutory grounds for disciplinary proceedings generally.Where a complaint is made to the Solicitors Disciplinary Tribunal inrespect of a solicitor it is customary to allege that the solicitor hasbeen guilty of conduct unbefitting a solicitor. Apart from criminalconvictions, conduct that was such as to support an action for wantof skill is not, generally speaking, sufficient to constitute a ground forstriking a solicitor's name off the roll or for suspending him frompractice. For this purpose his conduct must be judged by the rulesand standards of his profession, and it must be shown that he hasdone something which would be reasonably regarded as disgracefulor dishonourable by solicitors of good repute and competency, or ofhaving been guilty of such conduct as to render him unfit to remain amember of an honourable profession or of conduct which isinexcusable and such as to be regarded as deplorable by his fellowsin the profession…."
In support of the propositions laid down in this passage severalreferences to English decisions have been cited. It is not necessary forme to refer to them except to cite the following passage from thejudgment of lord Denning, MR in Re a Solicitor (7).
“On the second charge (of professional misconduct in not keepingthe books in proper form) counsel for the solicitor challenges thefinding of professional misconduct. Counsel has quoted cases toshow that professional misconduct should only be found when thesolicitor has been guilty of conduct which is disgraceful ordishonourable and is such as to be condemned by his colleagues inthe profession. I do not think that definition is exhaustive. In myopinion negligence in a solicitor may amount to professionalmisconduct if it is inexcusable and is such as to be regarded as‘deplorable by his fellows in the profession. We were referred to acase in New Zealand (Re M – 1930, NZLR 285) (8) in which it wassaid that the failure of the solicitor to have his trust accounts auditedamounted to professional misconduct. In that case it was arguedthat his failure was due merely to carelessness, and that as therehad been no dishonesty it was not professional misconduct. But theCourt of Appeal in New Zealand held that neglect amounts toprofessional misconduct. So here, the negligence of the solicitorwas reprehensible."
Thus in England negligent conduct on the part of a solicitor in thepractice of his profession, if inexcusable, would amount toprofessional misconduct so as to render him liable to disciplinaryaction. Whilst under our law, no doubt, every negligent act on the partof an attorney in the pursuit of his profession would not amount tomalpractice within the meaning of s.42(2) of the Judicature Act, ourdecisions have, in considering what misconduct amounts tomalpractice, given a less stringent and more liberal construction to thewords 'professional misconduct' or 'unprofessional conduct' than the
English decisions. Hence I can see no reason or justification forupholding the contention of learned President's Counsel that anegligent act, whatever its character, can never constitute malpractice ;under our law. Without endeavouring to embark on a precise definitionof the word malpractice in s.42(2) of the Judicature Act, it is my viewthat to warrant the exercise of the disciplinary powers of this court onthe ground that an attorney is guilty of malpractice the professionalmisconduct complained of must be of such a character as, in theopinion of this court, could fairly and reasonably be regarded as beingimproper or deplorable or reprehensible when judged in relation to theaccepted standards of professional propriety and competence.Adopting this as an appropriate, but not a decisive, test I hold that, inthe light of my findings enumerated above, the respondent is guilty ofthe charge of malpractice contained in the Rule.
What remains for consideration is the measure of punishment thatshould be imposed on the respondent. In so far as his conduct is,concerned the only mitigating circumstance appears to be theabsence of any element of moral turpitude on his part. As against this,his entire course of conduct betrays a deplorable indifference in thedischarge of his professional duties and obligations towards his client,in consequence of which he has jeopardised the very interests he wasretained to protect. Another grave objectionable feature in his conductis the blunt and baseless accusations he made against his own clientwho while protesting his innocence afforded the respondent an ^opportunity of making amends which the respondent failed to avail 'himself of. If he had done so, he would not have placed himself in thesituation in which he finds himself now. Far from showing anyrepentance for his conduct towards his client, he has, after thepresent complaint was made by his client to this court, threatened himwith legal action and proceeded to level a further accusation againsthis client of having attempted to condone the dishonest conduct of afiscal officer in a communication which he addressed to the BarAssociation over another complaint lodged against him. His failure tomake compliance with the direction and the order of this court isreprehensible and deserves to be severely condemned by this court.The affidavit that he filed in this court in answer to the charge laidagainst him in the Rule only helped to confirm his guilt. The soleauthority of admitting and enrolling persons of good repute andcompetency as attorneys-at-law has been and is the Supreme Court.Once so admitted and enrolled they become officers of court whom
the court holds out to the public as its officers who can safely beentrusted with their affairs. The disciplinary powers vested in the courtare designed to safeguard the interests of the public and theprofession and to ensure that attorneys maintain the high standards ofconduct expected of them as members of an honourable profession.Suitors and other members of the public have to be protected fromimproper conduct of attorneys who act in flagrant breach of theirprofessional duties and obligations. It is necessary for me to add thatthe apologies which the respondent, through his counsel, so lavishlybestowed on this court became quite meaningless in the absence ofany explanation of the circumstances which culminated in his defaultto comply with directions of this court. Any person who expects thiscourt to accept an apology which is tendered by him must necessarilysatisfy this court that it is one that is worthy of acceptance by thiscourt. Otherwise it will remain a mere empty and bare apology towhich no weight or consideration can be given. Taking into account allthese matters I am of the opinion that the respondent should besuspended from practising his profession as an attorney-at-law for aperiod of two years. Accordingly we direct that the respondent besuspended from practice for a period of two years with effect from 1 stJanuary 1987. He will also deposit in this court a sum of Rs. 1,050 ascosts of this application.
L. H. DE ALWIS, J. – I agree.
SENEVIRATNE, J.
This Court has issued a Rule in terms of section 42 of the JudicatureAct No. 2 of 1978 against R. N. J. Arthenayake, Attorney-at-Law andNotary Public the respondent to this Application. The Rule containsseveral charges to wit-paragraphs (b), (c) and (d), (e), (f) and (g).After the charge (g), there is a charge that the respondent on beingdirected by His Lordship The Chief Justice, failed without sufficient■ cause to file observations as so directed and has thereby showedscant respect to this Court. After the recitation of the above chargesthe Rule sets out that the respondent has committed acts ofmalpractice within the ambit of section 42(2) of the Judicature ActNo. 2 of 1978. I must at the outset observe that the learnedPresident's Counsel for the Bar Association submitted that theallegation that the respondent has shown scant respect to this Courtwas not one of the charges against the respondent in this Rule. This
submission is not a valid submission. On the construction of the Ruleissued against the respondent the above allegation is undoubtedly oneof thfe charges against the respondent, though it had not been given amarking as a separate paragraph. In fact his allegation is a separateparagraph, and I shall for the purpose of my order mark it as (h)-
"Whereas the written complaint lodged with this Court was
forwarded to youyou have failed without sufficient excuse
to file your observations as so directed and thereby shown scantrespect to this Court".
I have had the advantage of perusing the findings of Atukorale, J.and I agree with him that the charges in paragraphs numbered (c) to
except (e) in the Rule and as (h) by me in this order have beenestablished.
In my judgment I will deal with two submissions made by the learnedQueen's Counsel and the President's Counsel for the respondent andthe Bar Association respectively to wit-
(1) the interpretation of the term "malpractice" in section 42(1)Judicature Act No. 2 of 1978 and (2) that this Court does not haveany "inherent power" to deal with attorneys-at-law.
The Rule states that the "complaint made by the said A. C. Alles andyour subsequent conduct discloses that you have committed the actof malpractice falling within the ambit of Section 42(2) Judicature ActNo. 2 of 1978".
Learned President's Counsel on behalf of the Bar Association andlearned Queen's Counsel on behalf of the respondent strenuouslymade submissions on the construction of the term "malpractice" onwhich this Rule is grounded. It is sufficient for this purpose of the orderto begin with reference to section 17 of the Courts Ordinance No. 1 of1889, which sets out that an attorney-at-law "who shall be guilty ofdeceit, malpractice, crime or offence may be suspended or
removed". The next enactment which dealt with this matter is the
Administration of Justice Law No. 44 of 1973. Section 35 of this Lawsets out as follows:
"Every attorney-at-law who shall be guilty of any deceit,malpractice, offence or other conduct unworthy of anattorney-at-law, may be suspended or removed".
The Administration of Justice Law was abrogated and the presentlaw is contained in the Judicature Act No. 2 of 1978 section 42(2),which sets out as follows:
"An attorney-at-law who shall be guilty of any deceit, malpractice,
crime or offence may be suspended or removed
It will be seen that the term "malpractice" in respect of anattorney-at-law has been common to all these enactments dealingwith professional conduct of an attorney-at-law. Both, on behalf of theBar Association and on behalf of the respondent, it was strenuouslysubmitted that the term "malpractice", connotes conduct involvingmoral turpitude, that is turpitudinous conduct. In my view the wordsused in the above enactments pertaining to professional conduct ofattorneys-at-law must be understood in the light of the plain meaningof the words as used in the ordinary English language. If any specialmeaning or connotation was to be attached to these words, thenthese enactments would have defined in an interpretation section whatwas deceit, malpractice. The prefix "mal" means bad, improper, illegalaction, wrongdoing. Among the meanings attached to the word"malpractice" in the Concise Oxford Dictionary (6 ED. 1976) is-"wrongdoing". A study of the decisions pertaining to the Rules issuedon attorneys-at-law, both in England and in Sri Lanka show that,the term "misconduct" has been used. It will be seen that in the localenactments referred to above the term "misconduct" is not included inthe relevant sections, but the decisions of the Supreme Court havealways used the term "misconduct". The prefix "mis"- "means badly,wrongly, improper, unfavourable". Thus, the word misconduct willmean bad conduct, improper conduct. The ex facie meaning of thewords malpractice, misconduct, do not contain the element of moralturpitude. To consider these two terms involved moral turpitude, onehas to graft that connotation into these two words which do notcontain the meaning moral turpitude. No authority has been cited toshow that the words-malpractice, misconduct have been held, by theauthorities in England or in Sri Lanka to essentially involve the elementof moral turpitude.
There is local authority which shows that the Supreme Court has notinterpreted the word "malpractice" to involve an element of moralturpitude. The case of Solicitor-General v. Jayawickreme (supra) (4)was an instance of a Rule issued under section 17 of the Courts
Ordinance against an Advocate, who dealt directly and accepted feesfrom a lay client without the intervention of a Proctor. (This is a casebefore the amalgamation of the then two branches of the professionby the Administration of Justice Law No. 43 of 1973.) In theJudgment of Rose, C.J. it is stated that counsel on behalf of the BarCouncil which was represented informed Court that the Bar Councilalways assumed such conduct as was disclosed in the proceedings asprofessional misconduct amounting to malpractice. Rose. C.J.,Nagalingam, S.P.J. and Pulle, J. agreeing held that the respondentwas "guilty of professional misconduct amounting to malpractice, andhas thus rendered himself liable to the penalties prescribed by section1 7 of the Courts Ordinance". In the matter of a Proctor of theSupreme Court and in the matter of section 19 of the CourtsOrdinance, 1889 (9) a Rule was issued against a Proctor on theground that he wilfully neglected to tax his bill of costs against a client,who called upon him to do so under the direction of the SupremeCourt. Drieberg, J. with whom Fisher, C.J. and Jayawardene, A.J.agreed, held that the Proctor was guilty of misconduct. The headnoteshows that the Rule issued under section 19 of the Courts Ordinanceon the Proctor was to show cause why he should not be suspendedfrom practice or removed from the Roll of Proctors on the ground ofmisconduct. As stated earlier the term "misconduct" is not oneincluded in the relevant section of the Courts Ordinance, presentlysection 17. The term used in the Courts Ordinance of 1889 and thesubsequent like enactments is the term "malpractice". In the case In reJayawickrema, (supra) (4) the Court used the term "misconduct" andheld that such misconduct amounted to malpractice, the term in therelevant section of the Courts Ordinance. In the latter case of the Rule !on a Proctor the Court has used the term misconduct as synonymouswith the term malpractice in the relevant section of the CourtsOrdinance. The other striking feature of these two cases is that thefacts of both cases show that no moral turpitude as such wasinvolved, i.e. the kind of moral turpitude involved in the term "deceit","crime" or "offence” used in the relevant sections of the threeenactments referred to above. Due to these reasons I hold that the .term "malpractice" in section 42(2) of the Judicature Act No. 2 of1978 does not necessarily involve the idea of moral turpitude orturpitudinous conduct. The word "malpractice" has been used in thesection in its ordinary per se meaning.
My brother Atukorale, J. cites several decisions of the SupremeCourt to illustrate instances in which the Supreme Court has heldlawyers to be guilty of malpractice in respect of acts which did notinvolve turpitudinous conduct. One such case cited is the case of-Inre S. Dharmalingam (supra) (5). I have to disagree with theinterpretation of this case by Atukorale, J. On the facts of this case theSupreme Court sums up as follows:
"We are satisfied that the respondent has been proved to be guiltyof malpractice in that he misappropriated and failed to deposit inCourt a sum of Rs. 75 given to him by his client for the purpose ofbeing so deposited as survey fees in a partition action."
The facts in the case disclose criminal misappropriation an offenceunder section 386 Ceylon Penal Code, and the facts also come withinthe terms “crime or offence" in the Courts Ordinance.
Another submission made by the learned President's counsel for theBar Association and the learned Queen's Counsel for respondent wasthat this Court has no inherent power now to deal with charges inrespect of professional conduct of lawyers. Such power was now astatutory power found in the Judicature Act section 42(2). It wassubmitted that though at one time there may have been such inherentpower in the Supreme Court, at present such power is granted to theSupreme Court by the Statute, as such there is no inherent power.The position in England is that the Courts in England always acted onthe premises that it had inherent power to deal with the professionalconduct of the lawyers practising in the Courts. In recent times thereare Statutes granting such power, in respect of Solicitors, to theCourts in England, and in respect of Barristers the Courts havedelegated its power to the Inns of Court. But still the position is thatthe Courts in England always act on the premise that, though there aresuch Statutes, and power has been delegated to the Inns of Court,that the Courts in England do still enjoy such inherent power.Halsbury's Laws of England, Vol. 44 (4th Ed.) Para. 252-DisciplinaryJurisdiction, page 1911 sets out as follows:
"The Supreme Court possesses an inherent disciplinaryjurisdiction over the Solicitors, as being its officers. Under this
jurisdiction action may be taken against a solicitor both for his owr>misconduct and for actions of his clerk within the scope of hisauthority even where the solicitor is not personally implicated.
Note 2 -The High Court, the Crown Court, and the Court of Appealrespectively, or any division or Judge of these Courts, may,subject to the provisions of the Solicitors Act of 1974,exercise, the same jurisdiction in respect of Solicitors asany one of the Superior Courts of Law or equity from whichthe Supreme Court was constituted might have exercisedimmediately before the passing of the Supreme Court ofJudicature Act of 1873 (repealed) in respect of anySolicitor, Attorney, or Proctor admitted to practise there:Solicitors Act 1974 Section 50 (2)."
Halsbury-Laws of England (4th Ed.) Vol. 44-Para. 1132 sets outthe position or the inherent jurisdiction of the Courts-i.e. Powers ofthe Court over Counsel Barristers.
It has always been taken for granted that the conventions, practiceand etiquette of the Ceylon Bar was moulded on the lines of suchtraditions, conventions and practices of the English Bar. In matterspertaining to lawyers, considered by the Supreme Court of Sri Lanka,also as officers of the Court, the Supreme Court and the Bar Council,now Bar Association, have always resorted to the traditions,conventions and practice of the English Bar in determining such likematters. T. Nadaraja-The Legal System of Ceylon In Its HistoricalSetting (1972), Chapter Vl-Page 228-states as follows:
'Consequently, the organisation and the convention of the legalprofession, the forms and ceremonial followed in the administration
of justicetendered to adapt themselves to the English
pattern."
In the case of Brendon v. Spiro (10) decided in 1937 it was heldthat-
'A judge of the High Court, before whom an action has been filedhas inherent jurisdiction to entertain an application that a solicitor
who has acted for a party who, on the alleged ground ofprofessional misconduct, pay personally the costs ordered to bepaid by that party"
There is, as far as it could be ascertainable a decision of the SupremeCourt dealing with the inherent power of the Supreme Court in respectof Proctors. The case of in re Moonesinghe (11) was an applicationmade by a proctor struck off the Roll for professional misconduct to bereadmitted to the Bar. Wood Renton, C.J. decided as follows:
"No express power of reinstatement is conferred upon us bysection 19 of the Courts Ordinance. But both in England and SouthAfrica the view has been adopted that a Court which has the right toremove the name of a solicitor from the Rolls, has also an inherentdiscretionary power to readmit him where he has subsequentlyexpiated the offence of which he may have been guilty andredeemed his character."
Learned counsel for the respondent sought to submit that the basis forre-admission of a lawyer struck off from the Roll, is that it is consideredas a new admission. I do not agree with this submission as it is quiteclear that a lawyer once struck off from the Roll is not admitted to theBar on the same considerations as one seeking an admission to theBar for the first time. Before a lawyer struck off is admitted to the bar,i.e. readmitted, he must show that "he has subsequently expiated theoffence of which he may have been guilty and redeemed hischaracter." This is the golden thread of the principle running throughall readmissions to the Bar of those who have been struck off. Fromthe Charter of 1833 to the Courts Ordinance 1889 there was nostatutory provision enabling the Supreme Court to deal with theprofessional conduct of lawyers. Can it be said that during that hiatusany lawyer could have committed acts of professionalmalpractice/misconduct with impunity? In that situation the SupremeCourt would have undoubtedly used its inherent power to deal withsuch a delinquent adopting the convention of England where theCourts had such inherent power.
I must firmly state that on my part I will not readily entertain a purelylegal argument to restrict the accepted powers of this Court, which
this Court has traditionally and conventionally exercised unless it isshown to me that such power has been specifically restricted byStatute Law.
It has been submitted vehemently that there is no precedence forthe issue of a Rule on charges as contained in this Rule. In respect ofthis argument I can only console myself, and also the learned counselwith this quotation from the book "Discipline of Law"-Lord Denning,M. R. as follows:
"What is the argument on the other side? Only this, that no casehas been found in which it has been done before. That argumentdoes not appeal to me in the least. If we never do anything whichhas not been done before we shall never get anywhere. The law willstand whilst the rest of the world goes on and that will be bad forboth."
Lastly I must make the observation that with the increase of thenumbers of the Sri Lanka Bar there is and there will be a proliferation ofthe instances of professional malpractice, as such it is in the interestsof the Bar itself, and that of the public, that the relevant section 42(2)Judicature Act should be amended by the addition of the words
" or other conduct unworthy of an attorney-at-law" which
words were found in the now repealed like section 35 of theAdministration of Justice Law No. 44 of 1973.
I agree with my brother Atukorale, J. that the respondent is guilty ofthe charges of malpractice set out in the Rule issued and I agree withsentence of suspension only (for two years) as no "deceit", "crime oroffence" is involved, and I also agree with the order made re costs.
The Rule is affirmed.
Rule affirmed.
Respondent suspended for two years.