IN THE MATTER OF RULE AGAINST AN ATTORNEY -AT-LAW

027-SLLR-SLLR-2008-V-1-IN-THE-MATTER-OF-RULE-AGAINST-AN-ATTORNEY-AT-LAW.pdf


In the Matter of a Rule against
SCan Attorney-at-Law 275
IN THE MATTER OF A RULEAGAINST AN ATTORNEY-AT-LAWSUPREME COURTSARATH N. SILVA, C.J.
AMARATUNGA, J. ANDSALEEM MARSOOF, J.
S.C. RULE NO. 01/2006(D)
JUNE 6, 2008
Judicature Act No. 2 of 1978 – Sections 40(1) and 42(3) – Rule issued to showcause as to why the respondent should not be suspended from practice orremoved from the office of Attorney-at-Law. – Supreme Court (Conduct andetiquette for attomey-at-law) Rules 1988 – Rules 15,79,81.
The respondent's conduct within Court was observed as being in disobedienceand defiance of the directions made by Court and was rude, intemperate, insolentand contemptuous, did not express any regret as to the impugned conduct to theBench before which he appeared. The respondent upon the Rule being servedtook up a preliminary objection that there is no list of witnesses or documentsannexed to the Rule and raised further three preliminary objection as well.
Held:Section 40(1) of the Judicature Act empowers the Supreme Court to admitand enroll as an Attorney-at-Law a person of "good repute and ofcompetent knowledge and ability". These elements of good repute and ofcompetent knowledge and ability should thereafter permeate the conductof such person solong as his name remains in the Roll of Attorney-at-Law.
When a person is enrolled as an Attorney-at-law by the Supreme Court,such person acquires a professional status which he cannot shed bypurporting to file applications and appearing in person.
The power of the Supreme Court to investigate charges against themembers of the legal profession are not fettered by rigid rules and it isopen to the Supreme Court to adopt a procedure which is fair and just inthe circumstances.
Section 42(3) of the Judicature Act only requires that a notice be servedwith a copy of the charges and an opportunity be afforded to show cause.The Rule that has been issued and the procedure adopted is fullycompliant with this requirement.
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Per Sarath N. Silva, C.J.
"The contents of the Rule of which the Respondent was given ample notice,the repeated opportunities to offer an explanation and the right to berepresented by a Counsel, in my view establish that the procedure adoptedis fair and reasonable."
An objection to the participation of a Judge as a member of the Benchshould be only on firm foundation. Any frivolous objection that is takenwould only impede the due administration of justice, which may evenamount to contempt of Court.
Per Sarath N. Silva, C.J.
“The impugned conduct of
disobedience of orders of Court;
contemptuous disregard of the request of Court to clarify questions oflaw and the rude response that if the Judges wanted any clarificationof the law, they could look it up themselves;
the use of intemperate language and making of gesticulations to bringthe proceedings of this Court to ridicule and contempt.
constitute in my view unprecedented acts of discourtesy."
"It was open to the very bench that was hearing S.C.(F.R.) 108/06 to takeappropriate action against the Respondent."
Cases referred to:
Attorney-General v Ellawala 29 NLR 13.
Daniel v Chandradeva (1994) 2 SLR 1.
S.C. (F.R.) 232/2006.
Buvenaka Aluvihare, D.S.G. for the Attorney-General.
H.L.de Silva, P.C., with Maureen Seneviratne, P.C., Aravinda Athurupana andU.S. Marikkartot the respondent.
Daya Perera, PC., and Mohan Peiris, PC. for the BASL.
Cur.adv. vult.
June 6, 2008
SARATH N. SILVA, C.J.The respondent having been admitted and enrolled by this Courtas an Attorney-at-Law in terms of Section 40 of the Judicature ActNo. 2 of 1979, was issued with a Rule in terms of Section 42(3) ofthe said Act to show cause as to why he should not be suspendedfrom practice or removed from the office of Attorney-at-Law.
The impugned conduct of the respondent set out compre-hensively in the Rule itself as follows:
In the Matter of a Rule against an Attorney-at-Law
SC(Sarath N. Silva, C.J.)277
"WHEREAS you filed S..C. Application No. 108/2006(FR)describing yourself as a practicing Attorney-at-Law of theCourt and supported the application for Leave to proceed on
31.03.2006.
AND WHEREAS in your submissions you:
Continued to read each and every averment in the Petitiondespite a specific direction given, that the Bench waspossessed of the contents of the Petition and that youshould not unduly take the time of Court by reading eachand every paragraph but that you should make yoursubmissions relating to the specific matters of law and fact,relevant to the matters in issue. Despite the said directionyou in disobedience and defiance of the said directioncontinued to read the said paragraphs in the Petition, indisobedience of the specific orders of Court;
That in the course of the said proceedings when the Benchrequired you to address Court on certain issues for thepurpose of clarification of questions of law that arose forconsideration, you rudely and insolently refused to answerany questions despite repeated requests and youcontemptuously told Their Lordships that they could look itup themselves, if they so desired.
That you used intemperate language and madegesticulations to bring the proceedings of Court into ridiculeand contempt. That thereby, you engaged in conductprejudicial to the administration of Justice; failed to assist inthe proper administration of justice and. or permitted yourpersonal feelings to influence your conduct before Court inbreach of Rules 50 and 54 of the Supreme Court (Conductand Etiquette for Attorneys-at-Law) Rules 1988 amountingto misconduct and malpractice as an Attorney-at-Law.
AND WHEREAS, such conduct on your part warrantsproceeding against you for suspension or removal from theoffice of Attorney-at-Law under Section 42(2) of the JudicatureAct No. 2 of 1978."
It is manifest from the Rule itself that it has been issued directlyin relation to the respondent’s conduct within Court when hesupported application bearing No. S.C.F.R. 108/06. The Rule is
278Sri Lanka Law Reports[2008] 1 Sri L.R
based on the note made by the Presiding Judge of the Bench thatheard the said application on 31.3.2006 and was issued as it is thepractice in similar matters, after circulation amongst all Judges ofthe Court.
It has to be noted at the outset that the respondent whoseconduct was observed as being in disobedience and defiance ofthe directions made by Court and was rude, intemperate, insolentand contemptuous, did not express any regret as to the impugnedconduct to the Bench before which he appeared.
Instead of offering any explanation, regret or apology in respectof the impugned conduct, the respondent, upon the Rule beingserved took up a preliminary objection that there is no list ofwitnesses or documents annexed to the Rule and pursued thisobjection by seeking to obtain the note made by the PresidingJudge and the contents of the docket that was circulated amongstthe Judges. The Court clearly pointed out that it is manifest from theRule that the entirety of its content is of what took place in openCourt and that the impugned conduct is based on the observationmade by the Presiding Judge. Significantly, the Respondent whoshould have known what took place did not seek to file an affidavitafter the Rule was issued, being the practice in other matters andto offer an explanation, apology or regret.
Instead, the respondent raised three preliminary objections,they are:
that the Court has no jurisdiction to issue the Rule in terms ofsection 42(2) of the Judicature Act for the suspension orremoval of the Respondent as an Attorney-at-Law, since therespondent filed application No. 108/06, not as an Attorney-at-Law, but as an ordinary citizen of this country and that even ifthere is misconduct as alleged in the Rule he is not liable to bedealt with in that respect as an Attorney-at-Law.
even assuming that he is liable to be dealt with in terms of section42(2) of the Judicature Act, the Rule has not been issued incompliance with the procedure laid down in the applicable Rulesof the Supreme Court, as specified in Rules 79 and 81,
that in any event Justice Marsoof should not participate as amember of the Bench since he was also a member of the Benchin case No. S.C.F.R. 108/06 referred above.
In the Matter of a Rule against an Attorney-at-Law
SC(Sarath N. Silva. C.J.)
I would now deal with these preliminary objections.
As regards the first objection. I note that although therespondent purported to file the Application S.C.(FR) 108/06against the Attorney-General, Secretary to the President, Judges ofthis Court, the Speaker of Parliament, Prime Minister, Leader of theOpposition and Secretary to the Judicial Service Commission, inhis personal capacity, in paragraph 1 of the petition in thatapplication he has stated as follows:
1. "The petitioner is a citizen of Sri Lanka, aged 72 years and is
presently practicing as an Attorney-at-Law of the Supreme
Court of Sri Lanka."
In several paragraphs of the petition which runs into six pagesthe petitioner has made copious references to his role as anAttorney-at-Law. It is thus clear that the petitioner althoughpurporting to appear in person has availed of his status as anAttorney-at-Law in presenting the application. It is a matter ofcommon knowledge of which judicial notice can be taken that thepetitioner has been continuously engaged in the practice of filingapplications purporting to be in a personal capacity againstnumerous judicial and public officers. The case under referencecould be considered a sample of his forays into Court purporting toact in the public interest. Be that as it may, when a person isenrolled as an Attorney-at-Law by this Court in terms ofsection 40(1) of the Judicature Act, such person acquires aprofessional status which he cannot shed by purporting to fileapplications and appearing in person.
The section empowers this Court to admit and enroll as anAttorney-at-Law a person of "good repute and of competentknowledge and ability". These elements of good repute andcompetent knowledge and ability should thereafter permeate theconduct of such person so long as his name remains in the Roll ofAttomeys-at-Law.
The respondent cannot be permitted to shed his professionalstatus as an Attorney-at-Law as and when he pleases, to makeforays into this Court or into any other Court and to conducthimself in a manner that does not befit the professional status ofan Attorney-at-Law. It is indeed disturbing that a person shouldelect to take shelter on an objection of this sort when a
280Sri Lanka Law Reports(2008) 1 Sri L.R
clear imputation is made of malpractice and misconduct in the faceof the Court. Accordingly, I would over-rule the first preliminaryobjection of the respondent.
The second objection raised by the respondent relates to theprocedure that has been adopted. It is to be noted that by thisobjection he is reiterating the previous objection that there shouldbe a list of witnesses and documents and that there should be aninquiry with the evidence of witnesses being adduced by theAttorney-General or Counsel representing him. As noted above itis plain on a reading of the Rule that the impugned conduct of therespondent, is what has been noted by the Presiding Judge. Whatthe respondent seems to imply is that the Presiding Judge shouldbe called as a witness and submitted for cross-examination byhim. In my view even a suggestion of this nature is preposterous.In any event I wish to cite the Judgment of a Divisional Bench ofthis Court in the case of Attorney-General v Ellawalah) – at 17which reads as follows:
"The power of this Court to investigate charges againstmembers of the legal profession is unfettered by rigid rules ofprocedure relating to the initiations of such proceedings or byany strict definition of or limitation as to the nature of materialupon which alone such proceedings may be founded.Whenever in the Opinion of this Court an occasion has arisento investigate a charge against an advocate or proctor which,if true, renders him liable to suspension, or removal fromoffice it has the power to initiate proceedings for theinvestigation of the charge. It is essential, not only in theinterests of the profession, but of the public, individualmembers of which are constrained daily to commit their mostvital interests to members of the legal profession, that casesof misconduct, and especially of dishonourable conduct,which comes under or are brought to the notice of this Courtshould be fully investigated, and that their investigationshould not be hampered or burked by mere technicalities.The rule issued in this case is well founded, and as weintimated to counsel at the hearing this preliminary objectionmust be rejected."
SCIn the Matter of a Rule against an Attorney-at-Law281
(Sarath N. Silva, C.J.)
It is clear therefore that proceedings of this nature are notfettered by rigid rules and that it is open to this Court to adopt aprocedure which is fair and just in the circumstances. This matter isunique in that the impugned conduct was in a proceeding in Courtitself. Transgressions within Court are rare and Attorneys-at-Lawknow where to draw the line and restrain themselves to keep withinan acceptable norm. The impugned conduct transcends the normby far. The Rule sets out in fair detail the circumstances and theimpugned conduct. The respondent has had an ample opportunityto offer an explanation. Instead of offering an explanation he hasraised preliminary objections and pleaded forgetfulness. Thecontents of the Rule of which the respondent was given amplenotice; the repeated opportunities to offer an explanation and theright to be represented by counsel, in my view establish that theprocedure adopted is fair and reasonable.
Section 42(3) of the Judicature Act only requires that a notice beserved with a copy of the charges and an opportunity be affordedto show cause. The rule that has been issued and the procedureadopted is fully compliant with this requirement. In thecircumstances I overrule the second objection raised by therespondent.
The third objection raised by the respondent relates to theparticipation of Hon. Justice Marsoof as a.member of this Bench.The objection is that since Justice Marsoof was a member of theBench that heard the Supreme Court Application No. S.C.F.R.
108/06, he was privy to what took place in Court and that he shouldnot participate in this matter.
I have to note at the outset that neither proceedings in SC(FR)108/06, nor this Rule could in any way be construed as personalmatters between any of the Judges and the respondent. If therespondent has thus conceived the proceedings, it is amisconception only to his detriment. Justice Marsoof wasfunctioning as a Judge of this Court in SC(FR) 108/06 and themerits of that case have no bearing on these proceedings. What isin issue is the impugned conduct of the respondent in making hissubmissions. I am of the view that it was open to the very Benchhearing S.C.F.R. 108/06 to take appropriate action against therespondent. It has to be noted that the respondent has on more
282Sri Lanka Law Reports[2008] 1 Sri L.R
than one occasion instituted proceedings against Honourable Judgesof this Court and of the Court of Appeal and on other occasionsobjected to Judges hearing his cases. In S.C.F.R. 108/06 when thematter came up on 22.3.2006 the respondent objected to thePresiding Judge hearing the matter, commenting that the Judge isbiased. The ground of bias alleged is that applications filed by himpurporting to appear in person have been dismissed by the saidJudge. When it was pointed out to him that these applications hadbeen filed several years ago and that in some cases in which therespondent appeared there had been judgments in his favourdelivered by the same Judge, he has stated that the allegation of biaswas only his belief, which might be right or wrong.
He had followed up by saying that although he had no facts tosupport his allegation, the Judge's body language had conveyed tohim an impression of partiality.
I have to emphasize that an objection to the participation of aJudge should be only on firm foundation. Any frivolous objectionthat is taken would only impede the due administration of justice,which may even amount to contempt of Court. The respondent'sobjection to the participation of a Judge without offering anexplanation of the impugned conduct is frivolous. I have to note atthis point that although repeated opportunities have been affordedhe has been evasive. He has neither admitted nor denied theimpugned conduct in Court. In paragraph 38 of the affidavit he hasvirtually pleaded amnesia by stating " I cannot at this distance oftime (more than an year later) recall what exactly was said." HenceI overrule the final objection of the respondent.
The impugned conduct of :
disobedience of orders of Court;
contemptuous disregard of the request of Court to clarifyquestions of law and the rude response that if the Judgeswanted any clarification of the law, they could look it upthemselves;
the use of intemperate language and making ofgesticulations to bring the proceedings of this Court toridicule and contempt;
constitute in my view unprecedented acts of discourtesy.
SCIn the Matter of a Rule against an Attomey-at-Law283
(Sarath N. Silva, C.J.)
There are no reported instances of such deplorable conduct inour legal literature. The Bench that heard the matter has shownthe highest leniency towards the respondent.
As regards discourtesy to Court I wish to cite the followingpassage from the Judgment of this Court in Daniel vChandradevai2) page 1-
"It comes as a surprise that the word "only" was used andrepeated for emphasis as if discourtesy was of little or nosignificance in the matter of professional conduct. Discourtesyto the court is a very serious matter. The rough and rudeconduct of an uncouthed attorney unaccustomed to followingthe usual ways of members of the profession who are of goodrepute is always shocking and repellent and deplorablealthough it may not amount to professional misconductwarranting disciplinary action. However, discourtesy to court ismuch more than a matter of good manners. It is axiomatic thatevery attorney must encourage respect for the administrationof justice by treating the courts and tribunals of the country notonly with candour and fairness but also with respect andcourtesy. An attorney who is discourteous to Court acts in amanner prejudicial to the administration of justice in that heundermines the work of the Court. He renders himself unfit tobe an officer of the court. As an officer of the Court and as aprivileged member of the community who has beenconditionally allowed to practice his profession to assist in theadministration of justice every attorney must act with courtesyto Court. It is a duty recognized by Rule 15 of the SupremeCourt (Conduct of and Etiquette for Attorneys-at-Law) Rules1988."
Malpractice that was alleged in that case was the failure toappear in Court, having accepted a retainer; Counsel for therespondent in that case had tendered written submissionssuggesting that the failure of the respondent to appear in Court"only amounts to discourtesy to Court." It is this submission whichdrew the aforesaid observation of this Court. In comparison, theconduct that is alleged against the respondent transcends by farany conceivable level of discourtesy.
284Sri Lanka Law Reports[2008] 1 Sri L.R
The need for deterrent action against the respondent is broughtforth in another case – S.C.F.R. 232/2006,(3) which came up beforeCourt nearly 3 months after the incident on the basis of which theRule has been issued. That case had been filed by 2 personspurportedly in the public interest against 5 Judges of the SuperiorCourts, the Speaker, Prime Minister, Leader of the Opposition andso on. The respondent as Attorney-at-Law for the petitioners madesubmissions which caused the Court to make the following order on
30.6.2006.
"Mr. Elmore Perera, Counsel for the petitioner in the course ofhis submissions stated that he is not only addressing Courtbut also the people of this country. It seems to Court that thisapplication has been filed for frivolous and vexatiousconsiderations and also for collateral purposes.
Court directs Attorney-General to consider whether any actionis warranted against the petitioner for wasting the time ofCourt and also abuse of process."
It is to be noted that S.C.F.R. 232/2006 was heard by threeJudges, none of whom were members of the Bench which heardthe matter in respect of which the Rule has been issued. It is thusseen that the respondent by his sheer discourtesy, disrespect,disobedience and insolence brought the Judges of this Court to apoint of exasperation.
For the reasons stated above, I affirm the Rule and hold that therespondent is guilty of malpractice. The respondent is suspendedfrom practicing as an Attorney-at-Law for a period of 7 yearscommencing from today.
AMARATUNGA, J.-I agree.
MARSOOF, J.-I agree.
Affirmed the Rule issued in terms of Section 42(2) of the JudicatureAct No. 2 of 1978.