Thursday, February 22, 2018

Investigate what exactly?

Dana Seetahal logo49

Mark Fraser

 There have been several calls for an investigation into the concerns expressed in an August 30, 2013 letter by the then Solicitor General. It has (repeatedly) been stated that the then SG asked for an investigation because she was concerned there had been “in existence for some time an unethical business venture engaged in by attorneys-at-law” acting for prisoners alleged to have been assaulted by prison officers. She is quoted as stating that at issue was whether there was a conflict of interest by “certain key office holders” taking action to support the unethical business for financial gain.

All well and good it may seem: the then SG had these serious concerns and there should be an investigation. However, a review of the letter may lead one to wonder what exactly is the root of her concerns. 

I have not seen clearly reported in the media the contents of the August 2013 letter. In that regard I have sight of a letter dated August 30, 2013 signed by Eleanor Donaldson-Honeywell, as Solicitor General, addressed to the Prime Minister and headed “Report proposing the need for an investigation into litigation against the State arising from incidents in the Prison Service”. This, then, appears to be the letter that is the source of the controversy.

In that letter the then SG begins by stating that her purpose is to bring to the attention of the authorities the need for an investigation into circumstances that may “amount to breaches of professional ethics by the attorneys involved” that may have the effect of perverting the course of justice in litigation against the State. In the next paragraph she speaks to the concerns she has, as reported in the media, and refers to the implications for national security and the civil law function of defending the State. She says these may manifest in de-motivating State attorneys and prison officers and diminishing their reputation.

Thereafter Ms Donaldson-Honeywell states, “There are three main circumstances that can be highlighted” that point to the need for the investigation into the alleged unethical business venture. She proceeds to list them. 

The first circumstance

She cites “the retainer of attorneys-at-law previously engaged on a large scale basis in prison litigation against the State to instead represent the State in defending certain civil law claims while continuing to act against the State in prison matters”. She says “in at least one such matter” where such an attorney acted against the State, lawyers from the Civil Law Department brought to her attention evidence of “cut and paste” practices in using the same set of alleged injuries for different alleged victims. When this was brought to the attention of the court by the State attorney the lawyer concerned wrote a letter to the AG threatening to report the State lawyer to the Law Association (LATT).

The matter referred to here might very well be the case of Jamal Sambury v the AG where in February 2014 Master of the Court Patricia Sobion-Awai, said in respect of statements filed in February 2013 by the claimant: “In this case I found that the claimant was guilty of abuse of the process of the court insofar as he had copied extensively from the witness statement of another litigant”. As far as the former SG’s complaint is concerned, however, it is important to note that while an external attorney retained to appear for the State in one matter should not have a conflict of interest in that matter, he is free to represent persons in other matters against the State. This is a normal occurrence in legal practice. What is mystifying, however, is why the more pressing issue of the abuse of process in copying witness statements in a litigated matter was reported to the PM and not to the disciplinary committee of the LATT which regulates ethical matters.

The Second and 

Third circumstances

The next matter cited by Ms Donaldson-Honeywell followed from the fact that the AG had recommended that a legal officer in the Prison Service, who apparently worked with State lawyers in prison matters, should do his in-service internship with the ministry. Thereafter the legal officer instead took up an internship with a lawyer who engaged in litigation against the State in prison matters. The former SG says she wrote to the Prison Commissioner about this but the individual wrote threatening to report her to the LATT for aspersions to his ethics.

The final circumstance cited by the then SG is the lengthiest but has more to do with what she terms “blatant advertisement” on the part of attorneys involved in prison litigation which she saw as intending to prop up their business. 

She refers to newspaper articles extolling the success of such actions against the State from 2002 and the failure to report the fact that the State had in the past year been successful in defending most of actions in prison litigation. Ms Donaldson-Honeywell rues the fact of “this lop-sided PR” and complains that the AG did not support attempts to put out press releases and “PR” on behalf of the State in cases in which the Prison Service were shown not to have been liable in tort.

Those are the three “main circumstances” that the then SG highlights as pointing to the need for an investigation. That might well be but an investigation by whom and into what? In all three cases it appears she is referring to ethical breaches of the Code of Conduct: abuse of process; conflict of interest and advertising, which ought to be considered by the disciplinary committee of the Law Association. 

If there is evidence of “an unethical business venture engaged in by attorneys-at-law” acting for prisoners or of “key office holders” taking action to support the unethical business for financial gain, why has she not referred to it?

• Dana S Seetahal is a former independent senator