070-NLR-NLR-V-53-THE-SOLICITOR–GENERAL-Appellant-and-JAYAWICKREME-Respondent.pdf
320
'ROSE C.J.—The Solicitor-General v. Jayawickrcme
Present: Rose C.J., Nagalingam S.P.J. and Pnile J.THE SOLICITOR-GENERAL., Appellant, and JAYAWICKREME,
Respondent.
In the Matter of an Application under section 17 of theCourts Ordinance
Advocate—Professional misconduct—Malpractice—Courts Ordinance (Cap. 6), s. 17.When an Advocate deals directly with a lay client without the interventionof a Proctor he is guilty of professional misconduct amounting to malpracticeand thus renders himself liable to the penalties prescribed by section 17 of theCourts Ordinance.
Application under section 17 of the Courts Ordinance.
W. R. Weerasooriya, Acting Solicitor-General, with G. P. A. Silvaand G. F. Sethukavaler, Crown Counsel, in support.
S. Nadesan, with C. Manohara, for the respondent.
E. B. Wikramanayake, Q.C., with G. E. Chitty and G. T. Samara-wickrcme, for the Bar Council.
March 4, 1952. Rose C.J.—
This is the return to a notice issued on the respondent to show causewhy he should not be removed from the office of an Advocate.
The Solicitor-General concedes that the matter should be consideredon the basis of the facts as admitted in the respondent’s affidavit, which
HOSE C.J.—The Solibitor-General v. Jayawickreme321'
may be summarised as follows:that the respondent entered into’
discussions with one Seedin Perera, a remand prisoner in the Colombo-gaol, as a result of which he undertook to conduct his defence, arrangedwhat his fee should be and received a sum of money in part paymentof it, without having been previously instructed by a Proctor.
The question to be decided is whether such conduct amounts to“ malpractice ” within the meaning of Section 17 of the Courts Ordinance(Cap. 6).
Mr. Nndesan, Counsel for the respondent, contends that an Advocate’sduties may conveniently be classified under three heads, his duty to hisclient, his duty to the Court, and his duty to the fellow members of hisprofession, and that it is only to breaches of the.first two classes of dutythat Section 17 of the Courts Ordinance can have any application.
We have had the advantage of hearing learned Counsel on behalfof the Bar Council who informs us that the Bar Council has alwaysassumed that such conduct as is disclosed in the present proceedings isprofessional misconduct amounting to malpractice.
It is to be noted that the Bar Council in Ceylon is not vested with suchdisciplinary powers as are entrusted to the Inns of Court in Great Britain,but it appears that from time to time certain questions of professionalpropriety have been considered by them—in many cases, no doubt, as aresult of queries addressed to them—and replies have been given whichhave taken the form of “ rulings ” which have themselves been incorpo-rated in a document headed “ Principal Buies of Professional Btiquette,Conduct and Practice (Approved by the General Council of Advocates) ”.
The manner in which these rulings came into existence perhapsexplains the lack of uniformity in their draughtsmanship and the absenceof a clear distinction between matters which are presumably regardedby the Council as fundamental to the profession and those of lessor basicimportance. I find myself in agreement with the view—and the contrarywas not submitted on behalf of the Bar Council—that there are severalof the Buies—it is unnecessary for the purpose of the present matter tospecify which—a breach of which could hardly be held to be professionalmisconduct at all, and certainly not professional misconduct amountingto malpractice. Moreover, there would seem to be some matters whichone would have thought would have been provided for in the Buies—forexample, advertising—which are not mentioned at all.
That being so, I am of opinion that the Buies themselves should notbe regarded as conclusive in determining whether any particular conducton the part of an Advocate amounts to malpractice, and that undueweightage need not therefore be given to the actual terms in which anyparticular Buie is couched.
The Buies which appear to touch the present matter are—
‘ ‘ (/) It is not in accordance with etiquette for .an advocate to accepta fee in any civil or criminal matter, or to appear in any civil or criminaltrial, inquiry or appeal in any court, otherwise than on the instructionsof a proctor, except in the case of—
(a)
Counsel being assigned by court,
(P)
Crown Counsel appearing on behalf of the Crown.
11J. N. B. 80182 (10/57)
322HOSE C.J.—The Solicitor-General v. Jayawickreme
(t) It is a rule of the profession that every advocate should keep afee book said enter in it every fee paid together with the name of theproctor by whom it was sent.
(to) In all matters connected with his employment an advocateappears for and is concerned with the proctor only and should notdeal directly with the lay client.
(o) An advocate should not discuss or arrange for his fees with thelay client, and
(P) I* is highly undesirable for counsel to receive his fee or any partof it from any person other than .the proctor or a person authorised byhim ”.
Quite apart from these Rules, however, it must surely be regarded asa basic assumption that any person who is admitted as an Advocate inCeylon understands the implications of the division of the legal professioninto the two branches of Advocate and Proctor. In any country whichrecognises and adopts such a division, every Advocate on hig admissionmust, in my view, be taken to have agreed to be bound by the practiceand tradition of the profession in this legard, and should not be heardto say that he personally, through lack of thought or percipience, isunaware of them. Moreover, the law itself recognises ancf underlinesthe significance of the division of the profession by providing that a layclient on the one hand cannot be sued by an Advocate for his fees andon the other cannot sue the Advocate for their return or for damages fornegligence in the event of his affair being mishandled.1 His remediesand his liabilities are confined to the proctor for the simple andcompelling reason that there is in the eye of the law no privityof contract between the lay client and the Advocate.
The basic impropriety of an Advocate dealing directly with a layclient, without the intervention of a Proctor, is thus apparent.
For these reasons, I ain of opinion that the respondent has, upon theview of the facts as set out in his own affidavit, been guilty of professionalmisconduct amounting to malpractice, and has thus rendered himselfliable to the penalties prescribed by Section 17 of the Courts Ordinance.
I have anxiously considered whether the public interest and theinterests of the profession do not require the imposition upon therespondent of a period of suspension from the office of an Advocate.Having regard, however, to the fact that this is the first case of its kindbrought before this Court, and in view of the respondent having tenderedan apology, I have come to the conclusion, although not withouthesitation, that no penalty need be imposed in the present matter. Iwould add that it should not be assumed that this Court will take solenient a view in any subsequent instance of a like malpractice by anyother professional man.
I make no order as to costs.
Nagalingam: S.P.J.—I agree.
Puixe J.—I agree.
Rule made absolute.
1 Munaeinghe v. Pereira (1925) 27 N. L. B. 76.