006-SLLR-SLLR-2008-V-2-RULE-AGAINTS-AN-ATTORNEY-AT-LAW.pdf
SCftu/e against an Attorney-at-Law73
RULE AGAINSTAN ATTORNEY-AT-LAWSUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, J.
AMARATUNGA, J. ANDSOMAWANSA, J.
S.C. RULE NO. 12/2004 (D)
FEBRUARY 28TH, 2008APRIL 04TH, 2008
Judicature Act – Section 42(2) – Acts of deceit and malpractice or otherconduct unworthy of an Attorney-at-Law – Supreme Court Rules of 1998 -Rule 60 – Conduct of and etiquette for Attorney-at Law – Deceit – Malpractice-Crime – Offence?
The complainant, one S alleged that one M, Attorney-at-Law had passed awayon 11.02.1988 and the respondent A had been using late M’s name and sealfraudulently and since he had been carrying on his practice under late M‘sname, he is guilty of deceitful conduct.
The Supreme Court called for observations from A and as he failed tosatisfactorily explain his conduct to the Supreme Court, a Rule was issueddirecting A to show cause why he should not be suspended from practice orbe removed from the office of Attorney-at-Law of the Supreme Court for actsof deceit and malpractice he had committed in terms of Section 42(2) of theJudicature Act.
Held:
Having a partnership would not fall within the category of deceitfulpractice in terms of Section 42(2) of the Judicature Act.
As the respondent failed to establish that there had been a partnershipbetween the late M and the respondent, the conduct of the respondentin placing the signature and using the rubber stamp of a deceasedAttorney-at-Law would constitute deceitful conduct and malpracticewithin the meaning of Section 42(2) of the Judicature Act.
Per Dr. Shirani Bandaranayake, J –
"In a situation, where there was no established partnership, therespondent had taken steps to file proxies, place the seal and sign
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documents as M which has the effect of misleading not only thegeneral public, but… also the Courts.u
The action taken by the respondent not only amounts to professionalmisconduct, but also conduct which is dishonourable and unworthy ofan Attomey-at-Law.
Cases referred to:
Ohammika Chandratitake v Susantha Mahes Moonasinghe (1992) 2 Sri LR303.
In Re Arthenayake (1987) 1 Sri LR 314.
Attorney-General v Ariyaratne (1932)34 NLR 196.
In Re Brito (1942) 43 NLR 529
Emperor Rajani Kante Bose et.al 49 Calcutta 804.
Re Seneviratne (1928) 30 NLR 299.
Rule issued in terms Section 42(2) of the Judicature Act, No. 2 of 1978 againstan Attorney-at-Law.
Parinda Ranasinghe (Jr.) S.S.C. for Attorney-General.
Dr. Sunil Cooray for respondent.
Rohan Sahabandu for BASL.
Cur.adv.vult.
August 28, 2008.
DR. SHIRANI BANDARANAYAKE, J.The complainant, Noor Mohomed Suhaibdeen, of MadawalaBazaar, Pathadumbara was a defendant in a partition actioninstituted in the District Court on Kandy on 19.12.1995, bearing No.P/13629. The plaint in the said action was filed by the respondentin the instant matter namely, Abdul L. Mohomed Anees, Attorney-at-Law, in which he had placed his signature and had affixed hisseal under the name A.L.M. Anees (hereinafter referred to as"Abdul Anees”).
The complainant alleged that on 21.05.1996 the respondenthad filed an amended plaint in the District Court of Kandy under thename of S.M. Musthapha and on that the Court had issued aninterim injunction. He further alleged that on page 2 of the copy ofthe interim injunction issued to the complainant, the respondenthad signed and affixed his seal as 'S.M. Musthapha'.
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The complainant alleged that S.M. Musthapha, Attorney-at-Lawpassed away on 11.02.1988 and Abdul Anees had been using late
S.M. Musthapha's name and seal fraudulently and since had beencarrying on his practice under late S.M. Musthapha's name, that heis guilty of deceitful conduct.
The observations of Abdul Anees were called and he had failedto satisfactorily explain his conduct to this Court. Therefore on
a Rule was issued directing Abdul Anees to showcause, why he should not be suspended from practice or beremoved from the office of Attorney-at-Law of the Supreme Courtfor acts of deceit and malpractice he had committed in terms ofSection 42(2) of the Judicature Act.
The complainant, Noor Mohomed Suhaibdeen and the Registrarof the District Court of Kandy gave evidence and the respondent,Attorney-at-law, Abdul Anees testified under oath in his defence.
The Rule issued on the respondent stated as follows:
The respondent was the registered Attorney for the plaintiffin Case No. P/13629 in the Kandy District Court while thecomplainant was the 3rd defendant in the same case;
the respondent had placed the private seal of the thendeceased S.M. Musthapha, Attorney-at-law and forged thesignature of the said S.M. Musthapha as the Attorney-at-Lawfor the plaintiff on the enjoining order dated 13.11.1996,restraining the 2nd defendant and the said complainant.
While the said S.M. Musthapha, Attorney-at-Law had expiredon 11.02.1988, the respondent had fraudulently placed theprivate seal of the said S.M. Musthapha, Attorney-at-Law onseveral other documents filed in the said case P/13629 inthe Kandy District Court.
The complainant, Noor Mohomed Suhaibdeen, a retired SchoolPrincipal, submitted in his evidence that his residence situated atNo. 133, Kandy Road, Madawala formed part of the subject matterin case No. P/13629, which was filed by the plaintiff, M.l. Laheer on16.12.1995. It was not disputed that the respondent was theAttorney-at-Law for the plaintiff. Apparently, the said plaintiff was arelative of the respondent Attorney-at-Law. An enjoining order was
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issued on 21.12.1995 preventing any further constructions orrepairs of the said premises and the adjoining house purchased bythe complainant, which order was prepared by the respondent (P1).He also submitted that a further interim injunction had been issuedwith regard to the same premises on 19.11.1996 (P2) and the saidinterim injunction contained a signature on page 2 of the said P2,purported to be of S.M. Musthapha for the plaintiff and also arubber seal of the said S.M. Musthapha had been placed.
The complainant had also adduced evidence that in 2002, partof the complainant's house was demolished for road widening anda sum of Rs. 271,000/- had been paid to the complainant ascompensation. Further the learned District Judge had visited thesepremises in question on 31.05.2004 and had allowed thecomplainant to fix windows only on the 1st floor of the house.
Accordingly the contention of the complainant was that due tothe restraining orders, he and his family had been living in apartially built house from 1995 to date and they had to faceimmeasurable amount of difficulties and even the property he hadpurchased adjoining his house also had been neglected due to thesaid interim injunctions and more importantly that both theseorders, according to the complainant were forgeries.
The Registrar of the District Court, Kandy, on perusal of therecord of the partition action, viz., P/13629, submitted that this casehad been called on 118 times and taken up for trial on 14 instances.Further, he submitted the following:
the proxy for the plaintiff in the partition action was filed in thename of A.L.M. Anees on 16.12.1995;
the said proxy contained the rubber stamp of the respondentas 'A.L.M. Anees' (P5);
the Counsel for the plaintiff had filed a motion on 23.01.2002,withdrawing the existing proxy and seeking permission to filea fresh proxy in the name of S.M. Musthapha.
The respondent, in his evidence admitted that he had known thelate S.M. Musthapha, Attorney-at-Law and that he was working withhim since 1975 until his demise on 11.02.1988. He admitted thatthe signature of S.M. Musthapha and the corresponding rubber
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stamp appearing on the second page of the enjoining order dated
(P2) was placed by him. He submitted that he hadregistered a business on 02.04.1988 under the business name of"S.M. Musthapha, Attorneys-at-Law" (P4) and that he had beenusing the letter heads, which depicted the words, 'Musthapha andAnees' well after the demise of ‘S.M. Musthapha.'
Having admitted the above, the respondent contended that hehad known late S.M. Musthapha, Attorney-at-Law for a very longperiod and that he was a close relative. Further it was contendedthat the complainant had been aware of the fact that S.M.Musthapha had died in 1988 and therefore the charge of deceitcannot be maintained against him on the evidence before thisCourt.
On the charge of malpractice against the respondent, hisposition was that there was nothing improper in an Attorney-at-Law or even several Attorney's-at-Law practice under a businessname. In support of this contention, learned Counsel for therespondent in his written submissions had referred to 'De Silva &Mendis', 'D.N. Thurairajah & Co. 'Julius & Creasy' or D.L.& F. deSeram' all of which are business names under which Attorneys-at-Law have been and are practicing their profession for long periodsof time. Accordingly the contention of the respondent was that dueto his long association with S.M. Musthapha, Attorney-at Lawduring his lifetime and his being a close relative, it was not amalpractice to use the impugned business name of "S.M. Musthapha,Attorneys-at-Law."
It was also submitted on behalf of the respondent that it is not amalpractice for an Attorney-at-Law to practice his profession undera firm name, which included the name of a deceased Attorney-at-Law with whom he had been in practice. Learned Counsel for therespondent referred to Dr. A.R.B. Amerasinghe (Professional Ethicsand Responsibilities of Lawyers.P. 79), where it has been statedthat,
"An attorney shall not practice under a firm name whichincludes any name other than his own name, that of apartner, or any past member of the firm or of a firm whichconducted the same practice…"
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The name of a firm does not necessarily identify theindividual members of the firm and hence the continueduse of a firm name after the death of one or morepartners is not a deception and is permissible."
Accordingly it was contended that the respondent cannot befound guilty of malpractice.
The suspension and removal of Attorneys-at-Law is referred toin Section 42 of the Judicature Act and Section 42(2) of the saidAct, which deals with such suspension or removal, reads asfollows:
"Every person admitted and enrolled as an attorney-at-law who shall be guilty of any deceit, malpractice, crimeor offence may be suspended from practice or removedfrom office by any three Judges of the Supreme Courtsitting together."
As stated earlier, the Rule issued on 08.10.2004, against therespondent referred to acts of deceit and malpractice therespondent had committed in terms of Section 42(2) of theJudicature Act.
Considering the evidence before Court, it was not disputed thatthe respondent had registered a business in the name of 'S.M.Musthapha, Attorneys-at-Law' soon after the demise of S.M.Musthapha. It was also not disputed that he was using letterheadings, which read as 'Musthapha and Anees'.
With regard to the registration of a business under the name'S.M. Musthapha, Attorneys-at-Law', the contention of therespondent was that it was to 'perpetuate the good name of thesaid S.M. Musthapha and out of the respect he had for him'.However, after making reference to various other legal partnershipsreferred to earlier, it was contended on behalf of the respondentthat, the respondent and the deceased
S.M. Musthapha had a partnership from 1975.
Having a partnership, undoubtedly would not fall within thecategory of deceitful practice in terms of Section 42(2) of theJudicature Act. If there was such a legally recognised partnershipbetween the respondent and the deceased, then as stated by
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Dr. A.R.B. Amerasinghe (supra), the respondent was legallyentitled to place the signature in question, which was placed on theenjoining order and served on the complainant. However, for theplacing of the signature in question to be valid in this instance, itshould be evident that a partnership had been established.Accordingly the question in issue is, was there a partnershipbetween S.M. Musthapha and the respondent, Abdul Anees?
The respondent, as pointed out by the learned Senior StateCounsel, took great pains in stressing the fact that he and thedeceased had a partnership from the very outset in 1975. However,it is not disputed that the respondent, except for his own contentionthat there was a partnership between the deceased and himself,did not place any evidence before this Court to support his version.Moreover, on his own evidence, a question arose as to whether therespondent had been a partner of the deceased S.M. Musthapha orwhether he had worked with the deceased only as an assistant. Inhis evidence in chief on 28.02.2008, the respondent took up theposition that he had functioned with the deceased only as anassistant.
Further in his observations sent to this Court in reply to thecomplaint made against him on 07.02.2002, the respondent hadnot referred to a partnership between the deceased and himself,and had merely stated that the deceased S.M. Musthapha was hissenior in profession.
"Answering to paragraph 2, I state on the demise of lateMr. S.M. Musthapha who was my senior in profession Iregistered in his name a firm called and known as 'S.M.Musthapha, Attorney-at-Law'. Hence I signed as S.M.Musthapha, Attorney-at-Law ….
I admit that Mr. S.M. Musthapha who was my mentor andsenior in my professional matters died on 11th February1988" (emphasis added).
issued by Faiz Musthapha, President's Counsel, on the said dateand reads as follows:
"Mr. A.L.M. Anees, Attorney-at-law, was practicing inKandy under my father, the late S.M. Musthapha, as hisassistant. My father passed away on the 11th of February1988. Upon his death, Mr. Anees succeeded to myfather's practice and took over same at the samepremises. I became aware that he continued the practiceunder the name, style and firm of 'S.M. Musthapha,
Atto rney s-at- Law.'
I had no objection to his doing so" (emphasis added).
All this material the respondent had relied upon, clearly indicatethat the respondent had been functioning as an assistant of lateS.M. Musthapha. Even the letter issued by Faiz Musthapha,President's Counsel, which was referred to earlier, introduces therespondent as S.M. Musthapha's, assistant and not as his partner.
On a careful examination of the contention of the respondentand the supporting evidence of his position, it is quite clear that hehas not tendered any material to support his version that he hadbeen functioning as a partner of the late S.M.Musthapha.
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In cross-examination, the respondent submitted that, he haddiscussed the possibility of registering a partnership between thedeceased S.M. Musthapha and himself with S.M. Musthapha's son,Faiz Musthapha, President's Counsel and whether he had anyobjection to such registration.
In support of this contention, the respondent relied on the
dated 18.02.2006. The said document was
document marked
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As pointed out earlier when observations were called on thecomplaint made against the respondent, he did not take up theposition that he had indicated to the deceased S.M. Musthapha,about the registration of a business as a partnership under thename, style and firm of S.M. Musthapha, Attorneys-at-Law. At thatstage his position was that he had functioned as an assistant to thedeceased S.M. Musthapha. Later at the inquiry, he changed hisposition from being an assistant of the late S.M. Musthapha to thatof his partner. The only piece of evidence he tendered in support ofhis version was the letter given to him by Faiz Musthapha,President's Counsel, which I had reproduced earlier. That letter,however does not indicate any discussion the respondent, asclaimed by him in his evidence, had with the said Faiz Musthapha,President's Counsel at the time of his father, S.M. Musthapha'sdemise, of registering a partnership. For that matter, the contentsof the letter does not indicate any kind of discussion the respondenthad with the deceased S.M. Musthapha's son. The letter clearlystates that he 'became aware’ that the respondent had continuedthe practice under the name, style and firm of S.M. Musthapha,Attorneys-at-Law and that he had no objection for such action.
The aforesaid letter, it is to be noted, has been obtained by therespondent well after the Rule was issued. The said Rule was
of the respondent that there was a discussion with Faiz Musthapha,President's Counsel, in regard to the registration of a partnership atthe time of the death of S.M.Musthapha. It is not disputed that,
respondent had not placed
except for the document marked
, does not support the contention
Accordingly, the document
The said letter, is only in support of the position thatFaiz Musthapha, President's Counsel had no objection to therespondent carrying on the practice in the name, style and firm ofhis late father. Furthermore although the respondent contendedthat he and the deceased had a partnership from the very
his father's assistant until his demise in 1988. It would not benecessary to spell out in detail the difference between a partnerand an assistant in a law firm and their respective legalimplications.
, refers to the respondent as
beginning in 1975, the document
was written on
issued on 08.10.2004 whereas the letter
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any other material before this Court, in support of his contention.Although he had referred to the intention of entering intopartnership, there is not even an iota of evidence to support thisposition. Also, if there was an intention from the time he joined thedeceased S.M. Musthapha, in 1975 could it be believed that for 13years, until S.M. Musthapha's demise in 1988, that this could notget materialised? During a time span of 13 years, weren't the otherassistants, whom the respondent had referred to, as had workedwith the deceased and the respondent, aware of such an intention?If so, wouldn't the respondent have called them to establish theexistence of the partnership or for that matter, even the intention ofestablishing such a partnership? If, as the respondent claims, therewas such an idea of a partnership for over a period of 13 years,couldn't there be an indication, documentary or oral of such anintention?
The respondent relied on the fact that the business had beenregistered under the business name 'S.M. Musthapha' and thegeneral nature of the business being "Legal practice -Attorneys-at-Law and Notaries Public' (P4). He also referred to the letter issuedin February 2006 by Faiz Musthapha, President's Counsel, insupport of his contention that there had been an agreement withthe late S.M. Musthapha to enter into a partnership with therespondent. However, as has been examined, it is abundantly clearthat the respondent had not been able to satisfy this Court bysubmitting oral or documentary evidence to indicate that it hadbeen the intention of the late S.M. Musthapha and the respondentto enter into a partnership.
In the circumstances I answer the question, which was raised asto whether there had been a partnership between the late S.M.Musthapha and the respondent, in the negative.
The question thus arises as to the conduct of the respondent inplacing the signature and using the rubber stamp of a deceasedAttorney-at-Law in the absence of a partnership.
The conduct of the respondent becomes questionable when oneconsiders the two documents marked P3 and P12, which wereproduced before this Court at the proceedings. In both thesedocuments, attention of the Court was drawn not to the contents of
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the letter but only to the contents of the letter heads. The firstdocument marked P3 Is dated 28.10.1995 and the letter headreads thus:
"Musthapha & AneesAttorneys-at-Law & NPA.L.M. Anees LL.B. (Cey.)
The document marked P12, which bears letters of a differentfont, contains the names as 'Musthapha and Anees', but gives adifferent address and telephone number and the letter is dated
15.03.2004.
A careful examination of both these letter heads clearly indicatesthat the 1 st document marked P3 was written seven (7) years afterthe business name was registered and the second letter markedP12 had been written in 2004, which is sixteen(16) years after thesaid registration. It is to be noted that the said business name wasregistered not as Musthapha and Anees, but as S.M. Musthapha -Attorneys-at-Law.
On being questioned of these letter heads, the respondentcontended that there were excess of letter heads that were printedprior to 1988 and therefore he continued to use them even after thedemise of S.M. Musthapha. It is to be noted that, whenobservations were called from the respondent by the Registrar ofthe Supreme Court, the respondent had used one of theaforementioned letter heads, which contained the names"Musthapha and Anees' (P13).
The respondent also admitted that he had been using a rubberstamp, which contained a signature similar to that of late S.M.Musthapha.
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As stated earlier, the Rule against the respondent refers to theconduct of the respondent and stated that he had committed 'deceitand malpractice1 within the ambit of Section 42(2) of the JudicatureAct.
Referring to deceitful conduct Dr. A.R.B. Amerasinghe (supra,pg. 157) clarifies as to what kind of action would constitute deceitfulconduct and stated that,
"Deceit may amount to misconduct even though the actwas not done in the performance of his professionalduties. The Canadian Code makes 'committing, whetherprofessionally or in the lawyer's personal capacity, anyact of fraud or dishonesty, e.g. by knowingly making afalse tax return or falsifying a document, even withoutfraudulent intent and whether or not prosecutedtherefore' a violation of the rule requiring integrity.Therefore, being dishonourable or questionable conduct,disciplinary action would be warranted" (emphasisadded).
Section 42(2) of the Judicature Act, refers to deceit, malpractice,crime or offence and although this section was similar to Section 35of the Administration of Justice Law, the words 'or other conductunworthy of an Attorney-at-law' which were in Section 35 of theAdministration of Justice Law were not incorporated into Section42(2) of the Judicature Act. Considering the scope of Section 42(2)in the light of the above, Amerasinghe, J., in DhammikaChandratilake v Susantha Mahes Moonesingh&h clearly statedthat the word 'offence' in Section 42(2) of the Judicature Actcontained a wide meaning, which would include all forms ofunprofessional conduct in the sense of the 'misconduct' of anAttorney-at-Law in the process of his professional work. Thus,according to Amerasinghe,J.,
“In Re ArthenayakeP) Seneviratne, J. at 349 said that in theinterest of the Bar and that of the public, Section 42(2) of theJudicature Act should be amended by the addition of thewords 'or other conduct unworthy of an attorney-at-law’.Although the phrase certainly did usefully put the matterbeyond any doubt, and might have been retained out of an
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abundance of caution, which, with great respect, is what 1 thinkSeneviratne, J., meant, I do not think the removal of the words'or other conduct unworthy of an attorney-at-law' hasdiminished the powers of the court, I am inclined to think thatthe word 'offence' in Section 42(2) of the Judicature Act has awider meaning than that given to it in the Penal Code andCode of Criminal Procedure. I think it means disciplinaryoffence and includes, conviction for an offence by acompetent court, conduct that is criminal in character,malpractice – whether the professional misconduct involvesmoral turpitude or not deceit and all • other forms ofunprofessional conduct in the sense of misconduct the courtought to have taken into account at the time of the admissionof any attorney-at-law in deciding whether he was a person ofgood repute."
Considering the matter in question, it is obvious that therespondent was only an Assistant of the late S.M. Musthapha, whohad been a well-known legal luminary. Although the respondentclaimed of a partnership he had had with the late S.M. Musthapha,as stated earlier, the respondent did not produce any material toestablish his contention.
In a situation, where there was no established partnership, therespondent had taken steps to file proxies, place the seal and signdocuments as S.M. Musthapha which has the effect of misleadingnot only the general public, but as correctly pointed out by thelearned Senior State Counsel, also the Courts.
As pointed out by Amerasinghe, J. in Dhammika Chandratilakev Susantha Mahes Moonesinghe (supra), 'we do not have a rightto practice, but only a privilege conferred by the State, providedcertain conditions are fulfilled'. Thus the right to practice, accordingto Macdonell, C.J. in Attorney-General v Ariyaratnd3) is a revocablefranchise. Howard C.J. in Re Brito (4), following with approval thedecision by Mukerjee, J. in Emperor Rajani Kante Bose et aA5) tooka similar view and stated that,
"The practice of the law is not a business open to all who wishto engage in it, it is a personal right or privilege limited toselected persons of good character with special qualifications
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duly ascertained and certified; it is in the nature of a franchisefrom the State conferred only for merit and may be revokedwhenever misconduct renders the person holding the licenceunfit to be entrusted with the powers and duties of his office.Generally speaking the test to be applied is whether themisconduct is of such a description as shows him to be anunfit and unsafe person to enjoy the privilege and manage thebusiness of others as (an attorney-at-law), in other words, unfitto discharge the duties of his office and unsafe becauseunworthy of confidence" (emphasis added).
Rule 60 of the Supreme Court (Conduct of an Etiquette forAttorneys-at-Law) Rules of 1988 clearly states that an Attorney-at-Law must not conduct himself in any manner, which would bereasonably regarded as dishonourable and Rule 61 states that anAttorney-at-Law shall not conduct himself in any manner unworthyof an Attorney-at-Law.
On a consideration of all the circumstances of this matter, theaction taken by the respondent not only amounts to professionalmisconduct, but also a conduct, which is dishonourable andunworthy of an Attorney-at-Law.
For the reasons aforesaid, I find the respondent guilty of deceitand malpractice within the ambit of Section 42 of the Judicature Act.
Considering the circumstances of this matter, l am of the viewthat it is appropriate to refer to the words of Schneider, A.C.J. in ReSeneviratne^6 which were followed by Amerasinghe, J. inDhammika Chandratilake v Susantha Mahes Moonesinghe (supra)that I can only hope that this decision will have the salutary effectof awakening in Anees 'a higher sense of honour and duty'.
The Rule is, therefore, made absolute. I order that therespondent, A.L.M. Anees, Attorney-at-Law be suspended frompractice for a period of two (2) years commencing from today.
AMARATUNGA, J.-I agree.
SOMAWANSA, J.-I agree.
Rule made absolute.
Attorney-at-Law suspended for 2 years.