Text of letter dated October 18 to Law Association president Seenath Jairam SC on the acceptance and subsequent relinquishing of the legal brief on CLICO.
I am relieved to learn that you have returned the brief which you accepted to appear in the CLICO Commission of Enquiry in place of our colleague, Fyard Hosein. I intended to write you in any event because of my disagreement with what I perceive to be conduct short of the best traditions of the Bar. This is more so because you now hold the position of president of the Law Association of Trinidad and Tobago.
I recall your telephoning me soliciting my support for your candidacy to be elected president at the last Annual General Meeting of the Association in June this year. I told you then, and I repeat it now, that I could not support you because I did not have confidence that your motivation was purely to advance the standing of the profession in Trinidad and Tobago. I think I put it more crudely and accused you of putting yourself forward only to ingratiate yourself with the Executive to get briefs. When I spoke to you on the telephone I indicated that another senior colleague was present. You have realised the fear I then expressed.
My understanding is that Hosein and Quamina were retained by the Minister of Finance and have been appearing before the CLICO Commission since its appointment. The Commission was appointed on November 17, 2010 and its first sitting took place on the June 30, 2011. The Commission has therefore been sitting for almost eighteen (18) months.
I have spoken to Hosein who told me that his instructions were withdrawn on the October 5, 2012 with no prior discussion with the client or reasons given. He next received a letter from you dated October 8, 2012 in which you indicated that you had accepted a brief delivered to you on October 6, 2012 by instructing attorneys. This letter also indicated that briefed with you were Joseph Toney and Jagdeo Singh as your juniors. That was the first and only communication Hosein claims you had with him concerning your replacing him as counsel in the matter. I find this not only surprising but very disturbing.
Nobody questions the undoubted right of any client to "hire and fire" attorneys. But attorneys are under no obligation to accept briefs in circumstances which violate existing rules of professional conduct and the duties of an attorney to another in keeping with the traditions of our once noble profession. The Code of Ethics as you ought to be aware states as follows:
48. An attorney-at-law shall not accept instructions to act in Court proceedings in which to his knowledge the client has previously been represented by another attorney-at-law, unless he first notifies the other attorney-at-law of the change, and makes reasonable efforts to ensure that attorney has been paid for his services, but shall be deemed to have notified the other attorney-at-law if he has made reasonable efforts to notify him.
52. Nothing herein contained shall by construed as derogating from any existing rules of professional conduct and duties of an attorney-at-law which are in keeping with the traditions of the legal profession although not specifically mentioned herein.
That the brief concerned an appearance before a Commission of Enquiry and not a Court of law makes no difference. The spirit of the rule is that you should not accept instructions to appear before speaking to an attorney whom you know has been previously briefed in the matter. It is also a question of common professional courtesy and prudence. A client may be exercising his or her right to fire counsel but this may be for reasons which are unacceptable to the legal profession. In such a case counsel should refuse to accept a brief to replace a colleague. Attorneys are under no obligation to accept all briefs regardless of the circumstances surrounding the matter. It is not a question of entitlement to work (eat a food) as one of your juniors is reported as stating or of professional competence to do the legal work involved. It is a rule for the protection of fellow colleagues in the profession to whom a special and very high duty is owed. Your conduct as President of the Law Association can be likened to that of the President of the Trade Union who accepts a vacancy caused by the lock out of a member of his Union by an employer. That is called "scabbing".
The matter is compounded by the fact that I understand that you accepted the brief to appear before the CLICO Commission although you appeared in appeal CA No.82/95 of 2012 for the Appellants, Percy Farrell & Others, against the very Colonial Life Insurance Company Ltd., Minister of Finance and the Attorney General. This is the very Minister of Finance from whom you have accepted the brief to appear in the CLICO Commission. This is also offensive to the Attorney General against whom you appeared in the Court of Appeal and who is responsible for organising legal representation for the State including the Minister of Finance.
You are reported in the Trinidad Guardian on Tuesday, October 16, 2012 as saying that you returned the brief of the policyholders on October 4, 2012. The article went on to report your saying that a conflict on interest did not arise since "technically the lawsuit (the constitutional aspect) was filed against the office of the Attorney General." The report went on to quote you as saying that "I was approached on a brief and I accepted. A client is always entitled to change representation." This report if correct, in my view, demonstrates an alarming and crass lack of knowledge and sensitivity by the President of the Law Association of Trinidad and Tobago as to what is a conflict of interest. Indeed, if in fact there was no conflict of interest there was absolutely no justification in your returning the brief and thereby abandoning the client. But that is not all.
I also understand that, after your public announcement of having returned the brief in the Farrell & Others matter, as recently as last Friday, October 12, 2012 you attended a conference with that client and other attorneys to discuss issues arising out of that appeal. If that is true, how do you reconcile continuing to be involved in that matter while accepting a brief from the Minister of Finance in the CLICO enquiry.
I fear that you have done irreparable damage to the Law Association of Trinidad and Tobago and to the legal profession. As President you have failed to demonstrate an adherence, not to the highest, but to the most basic principles of professional etiquette and conduct of the Bar. You have failed the Association and the profession. You have also done a grave disservice to the Hugh Wooding Law School of which you proudly declared in the Trinidad Guardian that you are among the first of its students to receive Silk. Need I say more as to what your duty now is and what you should do.
Karl Hudson-Phillips QC is a
former attorney general
and president of the Law Association.