018-SLLR-SLLR-1981-1-IN-RE-UPALI-WIJESURIYA-AN-ATTORNEY-AT-LAW.pdf
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IN RE UPALI WIJESURIYA ANATTORNEY-AT-LAW
SUPREME COURT,
SAMARAKOON, C. J., SAMARAWICKREMA, J. AND WANASUNDERA, J.RULE NO. 2 OF 1980FEBRUARY 3,1981.
Attorney-at-law • Suspension – Malpractice.
The respondent Attorney-at-law failed to appear before a disciplinary Committee first ofthe Law Society and later of the Bar Association to explain his failure to file and pro-secute a suit for which he had received money and articles of value from an aged client.The respondent had taken undue and unfair advantage of an aged widow and sought toenrich himself at her expense. He had been evasive and indifferent in the matter of ex-plaining his conduct to the Disciplinary Committee. The public are entitled to expecthonesty and fair dealing from a lawyer.
'The respondent shuuld be suspended from the roll of attorneys for a period of five years,for professional misconduct.
Rule issued on attorney-at-law
A. A. de Silva for respondent
A. C. Gunaratne Q.C. for the Bar Association.
Sarath Silva Deputy Solicitor-General with S. MarsoofState Counsel for Attorney-General.
Cur. adv. vult.
February 21,1981
WANASUNDERA, J.
The resp.ondent, who is an attorney-at-law, has been cal led uponto show cause why he should not be suspended or removed fromoffice on the ground of deceit or malpractice. The charge againsthim is that while practising as an attorney at Panadura, he has fromtime to time obtained various sums of money and articles of a totalvalue of about Rs. 8,000 from his client, Mrs. C. W. Gunawardena,who is the complainant in this matter. These monies and articleshad been given by the complainant to the respondent in his profes-ssional capacity in connection with the filing of a partition action.The respondent had neither filed the proposed action nor returnedher money.
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This complaint came up for inquiry in 1970 and 1971 before aCommittee of the Law Society. In the first instance, the Committeewrote to the respondent and called for his observations. In hisreply, dated 14th May 1970, the respondent stated:
"Police have started investigations on a charge of criminalbreach of trust and my statement is due to be recorded shortly.In the circumstances I humbly request you to lay by the abovepetition till the police investigations are over. I am making adetailed statement to the C.I.D. for careful checking."
On 1st December 1970, the Committee again wrote to the res-pondent inquiring whether a criminal prosecution had been insti-tuted against him. Since there was no response to this letter, on 2ndJanuary 1971, the Committee sent a further reminder to the res-pondent. On 13th January 1971, the respondent replied stating thatafter due inquiries the police had dropped the matter.
The complaint which had been laid by was then taken up forinquiry by the Committee, but the respondent was not present atthe hearing. It recorded the statement of Mrs. Gunawardena, awidow, 80 years of age. She was interested in getting some redressand wanted the Society to request the respondent to return themonies and articles taken from her, or pay their equivalent valuein money. The Committee made the following order:
"The proctqr has not given us any explanation. He is also notpresent. We would call upon him to give his explanation to this .serious complaint as soon as a copy of this order is received byhim. If he gives his explanation a further inquiry into this matterwill be held on Wednesday the 7th June 1972 at 3.30 p.m. Ifhe fails to give his explanation within ten days upon receipt ofcopy of this order we will be compelled to refer this matterto his Lordship the Chief Justice for necessary action.
Copies of this order to be sent to the complainant, as well as toMr. Upali Wijesuriya at the following addresses:
Mr Upali Wijesuriya, Proctor S.C. & N. P„ Panadura.
Mr Upali Wijesuriya, Proctor S.C. & N. P„ Colombo 12.
Mr Upali Wijesuriya, Proctor S.C. & N. P., 24, Kaviraja
Mawatha, Morawinna, Panadura.
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It will be observed that the respondent had been given anopportunity of purging his default, and copies of the order hadbeen sent to no less than three addresses. Having regard to the ser-iousness of the charge against the respondent, the committee hasacted very fairly and with great patience and consideration towardsthe respondent.
The matter had then for some inexplicable reason gone intoabeyance, but was revived in 1977 at the importunity of the com-plainant. A second Committee of the Bar Association proceeded tohold an inquiry and in the course of those proceedings it was dis-covered that an order had already been made by an earlier Com-mittee. Consequently, the second Committee decided that the ear-lier decision of 1972 should be submitted to the Chief Justice fornecessary action. The present Rule is based on that earlier decision.
Turning to the facts of the case, it would appear that the com-plainant Mrs Gunawardena and her daughter, who was also residingin a portion of the mother's residence, were not getting on wellwith each other. The respondent had been advising the complainantin these disputes. He had suggested criminal proceedings in theMagistrate's Court against the daughter and received various sumsof money from the complainant for this purpose. He had donesome work in this connection and proceedings against the daughterhad been instituted in the Magistrate's Court. In consequence thedaughter had agreed to vacate the premises and live elsewhere.Those results had encouraged the complainant to rely more andmore on the respondent. The respondent had thereupon moved intooccupation of that portion of the premises which had been occu-pied by the daughter and begun to live there without paying rent.
Since title to the premises in question was in both the com-plainant and her daughter, the respondent advised the complainant'that a partition action should be filed to have the premises divided.The complainant states that from time to time she had paid varioussums of money to the respondent for this purpose, and sometimeswhen she did not have ready cash the respondent removed certainarticles belonging to her in lieu of money. In all she had paid aboutRs. 4,578/10 in cash and the value of the goods removed by therespondent is about Rs. 3,100/- making a total of aboutRs. 7,678/10. The partition case has not been filed up to date, norhas the respondent chosen to return this sum of money.
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The respondent has sought to explain his failure to file the par-tition case. He states that after he had carried out several "searches"in the Land Registry and prepared the necessary papers and wasready to institute the action, the complainant's daughter had fore-stalled him and filed a rei vindicatio action in the District Court ofColombo in respect of the same premises, naming both the com-plainant and the respondent as defendants. The respondent states thatsince the plaint had alleged that the respondent himself was inunlawful occupation of the premises, he did not think it was properfor him to handle the proposed partition action. The respondenthad informed the complainant accordingly and even vacated theportion of the complainant's premises he was residing in, for whichhe says he paid a rent of Rs. 25/-, although the complainant was notwilling to accept it in view of the professional services rendered byhim.
As regards the monies received by him, he has stated that he hadreceived about Rs. 400 to Rs. 500 in respect of the proposed parti-tion action and had also received about Rs. 900 in respect of thecriminal prosecutions. The respondent also admits that the com-plainant gifted him acoffee grinder worth about Rs. 175 in gratitudefor his services in the criminal cases.
As against these statements, which are not supported bydocuments, except some documents which show that he may havedone some work in connection with the proposed partition case,we find a number of documents produced by the complainantcontaining a record of monies expended by her on this litigation.These accounts, though- appearing in scraps of paper, are howeverof a detailed nature and are the kind of material we can expectfrom an old lady in straitened circumstances who is undulypre-occupied with her expenses. Some of the payments made arefor such items as survey fees, stamp fees, summons, batta, counsel'sfees and for other legal documents. These accounts fairly substan-tiate the allegations made by her against the respondent.
At one stage, counsel for the respondent in the course of hisaddress submitted that'if the respondent was accountable to thecomplainant in any sum, he could have adjusted the matter with thecomplainant, but unfortunately he has not been given an oppor-tunity of doing so, as he has had no notice of the disciplinary in-quiries against him. The report of- the Disciplinary. Committeewhich is before us indicates that the Committee has accepted thecomplainant's version of the matter, including the statement of
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expenses produced by her, in the absence of the respondent whofailed to furnish an explanation.
Whatever be the amount involved, if there were any monies ofthe complainant which the respondent was not entitled to retain, itwas his duty as a professional man to have promptly returned it tohis client whether or not he had knowledge of those disciplinaryinquiries. Nearly ten years have elapsed since then and with suchamounts still unpaid to an old widow, the respondent has failed toshow what we can consider a genuine desire to make redress. Weare therefore unable to accept his explanation.
The main submission of counsel who appeared for the respon-dent was that the respondent was unaware of the proceedingsbefore the Disciplinary Committee and had he such knowledge hecould have defended himself and shpwed that the complaint wasunjustified.
At the very outset of the proceedings before us, counsel soughtto correct the date "1972" mentioned in the affidavits of the res-pondent to "1973" on the ground that it was an error. In paragraph5 of the affidavit dated 23rd November 1980, the respondent hasstated that he "left Panadura in 1973 and took up residence inHambantota in 1973". This is repeated in the next paragraph wherehe states that from 1973 to 1979 he has been resident inHambantota and Matara Districts. In a second affidavit filed on 31stDecember 1980, the respondent has reiterated these facts, namely,that from T973 to 1979 he has been residing in the Hambantotaand Matara Districts.
The significance of the amendment that was sought to be made,became clear as the hearing proceeded. It would be observed thatthe order upon which this Rule is based was made in 1972 andcopies had been despatched to the respondent in that same year.If the date of the.respondent's leaving Panadura could be shiftedback to 1972 instead of 1973 set out in the affidavits, the respon-dent would be in a better position to deny the receipt of that order.If, however, the respondent had remained in Panadura till 1973,there could be little doubt that the order of the Disciplinary Com-mittee would have been received by him and, if so, his subsequentconduct is explicable only on the basis of a deliberate decision torefrain from participating in any further proceedings.
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In Re (Jpali Wijesuriya an Attorney-at-law
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There are a number of circumstances which appear to supportthe latter view. To begin with, the reference in his letter of 14thMay 1970 to a pending Police inquiry and a statement being madeto the C. I. D. appears to be more false than true. WhileMrs Gunawardena did make a complaint to the Moratuwa Police,the matter remained at the stage of a complaint without due investi-gation, because she says the officer dealing with it had gone ontransfer. If this is all that had happened in connection with thecomplaint, it would then appear that the reference to a C. I. D.investigation was misleading and was an attempt to draw a red'herrjng across the trail of the investigations by the DisciplinaryCommittee.
Another significant fact is that in both the affidavits filed byhim, the respondent has studiously avoided making any referenceto the disciplinary proceedings that had taken place until the timehe left Panadura. He has been evasive on this point and tries to slurover it. His affidavit merely states that no letters or notices add-ressed to him were received by him during the period he wasresiding in the Hambantota and Matara Districts and that somenotices in respect of this matter may have been sent to Panaduralong after he left Panadura. That is all he has to say about the pro-ceedings which, to his knowledge, had been begun against him whilehe was still at Panadura. In any event, the respondent who has beenin practice for nearly thirty five years ought to have known that thedisciplinary proceedings which were laid by at his request wouldhave been resumed sooner or later and it was his duty therefore tokeep himself informed of further developments in that matter. It isalso difficult to believe that the respondent would have uprootedhimself so completely from Panadura in the manner he would wishus to believe without even leaving behind a forwarding address orthat he would have cut himself off entirely from all contact withthat place unless he had some special reasons for doing so. We aretherefore unable to accept the submission that the respondent hashad no notice of the disciplinary proceedings or was not given anopportunity of being heard at the inquiry against him. .
On the facts established before us, we find that the respondenthad taken undue and unfair advantage of an aged widow and hadsought to enrich himself at her expense. The attitude of evasivenessand indifference shown by the respondent in respect of the com-
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plaint and the subsequent inquiries initiated against him are deplo-rable and are additional factors that weigh against him. The res-pondent belongs to an honourable profession from which thepublic are entitled to expect honesty and fair dealing. We share theview of the Disciplinary Committee that the complaint against therespondent is a serious one. The degree of punishment that shouldbe imposed in cases of this nature is always a difficult decision tomake. We have taken into account the mitigating factors mentionedby counsel and are also not unmindful of the consequences thatour order would have on the respondent's life and future. We how-ever feel that we must mark our disapproval of the conduct of thethe respondent in no uncertain terms and are of the view that theprofessional misconduct that has been disclosed in this case callsfor his suspension from the roll of attorneys for a period of fiveyears. In an interim order made on 27th October 1980, we have,pending the hearing of the Rule, suspended the respondent frompractice with effect from 30th October 1980. The period of fiveyears will be reckoned from that date.
Samarakoon, C. J.| agree
Samarawickrema, J.I agree
Respondent suspended fromthe Roll of attorneys forfive years.