clr/1987/1987_1_319.pdf

(5). AS A M E N D E D BY L A W 40/75, etc. AND INTHEMATTEROFIAANADVOCATE, (DisciplinaryAppeal No 1/87) Advocates — The Advocates Rules of Etiquette — Ambit — Not confined to conduct directly and inextricably connected with formal stepsin litigation but cover,also,acts of misconduct associated with the exerciseof the profession in a broadersense 5 Advocates — Unprofessional conduct — Involvement with client's interests — Undertaking by advocate given by affidavit in maintenance proceedings to meet, in caseof default, client $obligations under a maintenance order — Undertaking given in order to facilitate removal of client sname fromstop list — TheAdvocates Rulesof Etiquette Rules 16

(2)and

(3)10 Advocates — Disciplinary proceedings against— Standard of proof IS 20 25 30 The appellant isan advocate His client was adjudgedby the Distnct Court ofNicosia topay an amount of£60per month forthemaintenance ofhis wife andchildren The name oftheclientwas putbytheAuthonties onthestoplist The authonties would not agree toremove his name fromthestoplist unless sufficientsecuritywasgiven forthedischargeinfutureoftheobligations under the maintenance order To remove his client's said impediment of leaving the country, the appellant gavean undertakingembodiedinanaffidavit sworn tointhecourse ofthemaintenance proceedingsthatintheevent ofdefaulthewouldmeet the obligations of hts client As a result the impediment was removed and the appellant's client left the country A while later the maintenance order was varied and the obligations of the appellant's client were increased from £60 = to£90 = per month As a result of default to meet the obligations under the order the wife of appellant's client institutedcivil proceedingsforthe recovery of the amount due against the appellant The trial Court found that in view of the said variation of the order the guarantee ceased to be effective,but disapproved the conduct of the appellant on the ground that he impermissibly involved himself in the affairs of his client, cnticizing in particular his evidence to the effectmat whateverhe had done he did itout ofasense ofduty to his client 319 I n re l.A. An Advocate

(1987)Eventually disciplinary charges were biought cigainst the appellant who was found by the Advocates Discplinary Board guilty on three counts for unprofessionalconduct contrarytorules2 3and4of theAdvocatesRulesof Etiquette One of the three charges was also founded on the provisions of rule 16enjoiningineffectadvocatesnot toinvolvethemselvesintheaffairsof 5 theirclientsbeyondadvisingthemon thecase Asaresult the present appeal wasfiled Thefirst pointtakenby counsel for the appellant was that the conduct of the appellant could not justify disciplinary charges because it was outside his professional duties The secondpoint wasthattheDisciplinary Boardreliedoninadmissibleevidence 10 namely thesaidcnticisms oftheJudge Lastlythethirdpoint thatthefactsdid not disclose conduct incompatible with the exercise of the profession of an advocate Held dismissing the appeal

(1)The facts of the present case make it unnecessary to identify exhaustively the range of application of the rulesof 1 5 etiquette What can be said with certainty is that they are not confined to conduct directly and inextncably connected with formal steps in litigation Moreover they cover actsof misconduct associated with the exercise of an advocate'sprofessioninabroadersense Theycertainlycover theconductof theappellantinthiscase Whatisrequiredfromanadvocateunderrule 16

(1)2 0 that is not to involve himself in the factual ments of the case of hisclient is perfectly warranted by his status as an officer of justice (Section 15 of the Advocates Law asamendedby s 7of Law 40/75) The distinction which the present appellant failed to heed is the one between hisclient snghts andhisinterests While anadvocate must defend 2 5 the nghtsof hisclient fearlessly (rule2) hemustnotassociatehimselfwithhis clients interests The Disciplinary Boardisinaunique positiontoearmark the boundanes of professional conduct of advocates The public has a vital interest in the sustenance of the integnty of the profession and such interest must be heeded both by the Board and the Supreme Court in reviewing 3 0 decisionsof the Board

(2)In the submission of counsel for the appellant section 17

(7)of the Advocates Law, Cap 2,providing thatthe Disciplinary Boardshall«conduct the inquiry as nearly as may be as aCourt of summary jurisdiction» makes applicable the rules of evidence in summary cnminal proceedings and that being the case, the extract of the judgment cnticizing appellant s conduct shouldbeheldinadmissible invirtue of s 4

(3)of theEvidence Law, Cap 9 35 InthiscasetheDisciplinary Boarddidnotrestitsfindingsonsuchcnticisms, but simply referredtothejudgmentinordertoshowthereprercussions upon the profession from conduct as that of the appellant It isnot necessary to 4 0 decide inthis case the nature of disciplinary proceedings againstadvocates, thatiswhethertheyareofacivilorcnminalcharacter Itissufficientto repeat dictathatahighdegree of certaintyisrequiredinordertosustain disciplinary charges 320 1 C.L.R. 5 In re I.A. An Advocate

(3)The findings of the Disciplinary Board made the conviction of the appellantinevitable Heinvolved himself inawholly reprehensiblemannerin r the affairs of his client His conduct thereafter fell short of the standa ds required by rules 2 and 3 The litigation inwhich he found himself involved, hisconductandthestatementsmadeinthoseproceedings areareminderof the contempt mwhich an advocate may bnng the profession as a result of deviating from theetiquetteof the profession Appealdismissed Casesreferredto 10 /?eXVan^cVocate

(1981)I C L R 401, Allmson ν GeneralCouncilof MedicalEducation andRegistration [1984] 1 Q Β 750, Rexv GeneralMedicalCouncil[1930] 1 K B 562, Re Η(a Bamster) [198113 All ΕR 205, 15 Re CD anAdvocate

(1969)1CLR 376, Andreou ν Andreou, then ValeneBums

(1969)1CLR 533, ReA Β anAdvocate

(1969)1CLR 388, Mavrovoumotisν Nicolaides, 14 CLR 272, Erotocntouand Othersν Soutsos

(1963)i C L R 162, 20 Ousmiamsν Nicolaou

(1981)2J S C 314, Ahapittasν Roc-Chik Ltd

(1968)1CLR 1 ReCΗ anAdvocate

(1969)I C L R I C L R 561, Re Τ(a bamster) [1981] 2All ΕR 1105, Re X W anAdvocate

(1980)I C L R 187 25 Disciplinaryappeal. Appeal by I.A, an advocate against the decision of the Advocates Disciplinary Boardwhereby hewas convictedonthree counts for unprofessional conduct,contrarytorules 2, 3 and4 of the Advocates Rules ofEtiquette. 30 M.Kyriakides, for theapplicant. L. Qerides, for ths Disciplinary Board, as amicuscuriae. Cur. adv. vult. TRIANTAFYLUDES P.: The judgment of the Court will be delivered by Mr. JusticePikis;thoughImightadd thatasfar asIam 321 In re I.A.An Advocate

(1987)concerned I should not be taken as necessarily subscribing to everything expounded inthejudgment. PIKISJ.: This is an appeal of an advocate directed against a decision of the Advocates Disciplinary Board whereby he was convicted on three counts forunprofessional conduct, contraryto 5 Rules2,3,4,of theAdvocatesRulesofEtiquette.Oneofthethree charges (count 2) was also founded on the provisions of R. 16 enjoining in effect advocates not to involve themselves in the affairs oftheirclientsbeyond advisingthem onthecase.Thethree charges were founded on the same facts to which we shall 10 presently refer before examining the groundsraised on appeal. In order to facilitate the departure of his client abroad, the appellant gave an undertaking to the Welfare Department that in theevent of default on the partof hisclienttomeethisobligations underamaintenance order(madebytheDistrictCourtofNicosia), 15 he would himself remedy the default by personally paying the amount due; an obligation in the nature of a guarantee for the faithful discharge of the obligations cast on his client under the maintenance order. His client had been adjudged by the District Court of Nicosia to pay an amount of £60.- per month for the 20 maintenance ofhiswifeandtwochildren, thatis,£10.-forthe wife and £25.- for each child. Seemingly the authorities aware of the impendingdeparture ofthefather abroad (whereheresided),they tookstepstoputhisname onthestop-list,alistkeptatportsofexit with a view to prohibiting the departure from the territory of the 25 Republicof persons named therein. And theWelfare Dept. which took the initiative in the matter, would not agree to remove his name from the stop-list unlesssufficient security wasgiven for the discharge in future of the obligations of the father under the maintenance agreement. To remove the impediment in the way of his client leaving the country, the appellant gave an undertaking embodied in an affidavit sworn to in the course of the maintenance proceedings whereby he agreed, as aforementioned, to meet in the event of default the obligations of his client. It is necessary to heed the 35 wording oftheundertaking forthe lightitshedson thecapacityin which it was sworn to by the appellant and the details of the undertaking given. Introducing the affidavit the appellant identifies himself as an advocate. In the first paragraph of the affidavit heinforms thattherespondent intheproceed 13s,thatis, 40 thehusbandand father, ishisclientandfurther informsthathehad 322 30 1 C.L.R. In re I.A. An Advocate PiliisJ. been inpractice as anadvocate for 11years.Inparas.2and3 he refers to the details of the maintenance order and specifies the obligations of his named client (indicated above). In para. 4 he statesthathisclienthad, untilthatdote,methisobligations under 5 theorderofthe Court and further asserted thathewould continue doing so in future. In the last paragraph he undertakes to make good infuture any default on the part of his client in meeting his obligations under the order and declares that he guarantees the faithful discharge of the obligations of his client. Following his 10 undertaking and acting upon it, the Welfare Dept. agreed to the removal of the name of his client from the stop-list, facilitating thereby hisdeparture. Awhilelaterthemaintance orderwasvariedandthe obligations of the father were increased form £60.-to£90.-Inface of default 15 on the part of the father to meet his obligations under the new maintenance order and the refusal of the appellant to make good the amount due, civil proceedings were instituted by the wife againstthe appellant for the recovery of the moniesdue.Thetrial Court found that though the guarantee given by the appellant 20 through the aforementioned affidavit was valid, it ceased to be effective after the variation of the maintenance order. NeverthelessthetrialJudge expressed disapproval atthe conduct of the appellant. The appellant had. i n the o^njon of the Mai Judge, impermissibly involved himself in the affairs of his client 25 criticising inparticular his evidence to the effect that whatever he had donehediditoutofasenseofdutytohisclient.Thefileofthe civil action as well as the affidavit given by the appellant were produced before the Disciplinary Board. The points taken by counsel for the appellant were three in 30 substance. The first and foremost was that the conduct of the appellant,blameworthythough itmightbeintheopinionofsome, could not ground disciplinary charges because it constituted conduct outside his professional duties.The second wasthat the conviction was founded on inadmissible evidence, namely, the 35 partofthejudgment of theDistrictCourtofNicosiacriticisingthe conduct of the appellant. Specifically the submission was that s. 17

(7)oftheAdvocatesLawbindstheDisciplinary Boardtofollow the same rules of evidence as a criminal Court of summary jurisdiction.Thatbeingthecases.4

(3)ofthe EvidenceLaw,Cap. 40 9, rendered the judgment of the Court an inadmissible piece of 323 PlkisJ. In re ΙΛ. An Advocate

(1987)evidence since proceedings had commenced before the Disciplinary Board before delivery of judgment and on that accounttheJudge shouldbeconsideredasapartywith aninterest inthoseproceedings. Lastly, appellant challenged theconviction on the merits claiming that the facts did not disclose conduct 5 incompatible with the exercise of the profession of an advocate. We shall examine below in some detail the merits of the submissions raised. In support of the submission that only conduct strictly and directly associated with the exercise of the professional duties of 10 an advocate can found a disciplinary charge, counsel referred us, inter alia, to the decision of the supreme Court In Re XY an Advocate*. Contrary to thesubmission of counsel, thecase does not decide that only conduct relevant to the exercise of the professional dutiesof anadvocatestrictosenso canbe thesubject- 15 matter of disciplinary proceedings. The ratioof thecase (majority judgment)is confined to deciding thatthe chairmanof alocal Bar Association hadnorighttochallengeby way ofappealajudgment of acquittal given by the Disciplinary Board. Nor do the English cases cited** in support of the submission here under 20 consideration establish the proposition put forward. Recent English authoritysuggeststhattherange of applicationofthecode ofetiquetteof theEnglish Barisnotconfined tomisconductstrictly associated with thecarrying outof professional dutiesbut extends to acts tendingtobring theprofession of abarrister intodisrepute 25 -Re Η(a banister)***.Tothesame effect aredictaof theSupreme Court of Cyprus in Re CD. and Advocate****. The following passage***** from thejudgment of theCourtreflects the majority opinion in that case and is indicative of the ambit of the Cyprus Advocates Rules of Etiquette:«...Theirpracticesandtheirgeneral 30 conduct must strictly conform totherules and the etiquette of an honourable profession, enshrined in the dignity of a noble tradition******* •

(1981)1C.L.R 401 "Alhnsonv GeneralCouncilofMedical Educationand Registration11984] 1Q Β 750.atp 760-l;Rexv GeneralMedicalCouncil(193011 ΚΒ 562.atp.569 '"(1981] 3All ΕR. 205. "·*

(1969)1C.L.R. 376 ""•Page 380 *"*" See alsoPanayiotisAndreouν ValenePanayiotiAndreou then V-t'^neBums

(1969)1 C.LR. 533. 324 1 C.L.R. Inre I.A.An Advocate PUdsJ. On a number of occasions theSupreme Court took painsto stress* that theconduct of advocates is notmerely a matterof interest to members of theprofession butalso a matter of vital importance tothegeneral publicbecause oftheassociation of the 5 profession with theadministrationofjustice The rules ofetiquettedonotintermslimittheapplicationofthe code of etiquette to misconduct directly and inextncably associated with theexercise ofprofessional duties Onthecontrary examination of the content of the rules suggests that their 10 ambit is wider and covers conduct likely tobnng the profession into disrepute Rule 3 m particular binds an advocate to maintain the honour and dignity of the legal profession Furthermore, R 4 provides thattheconductofanadvocate must always be charactenzed by honesty, straightforwardness and a 15 sense ofjustice On theother hand R 16

(1)requires advocates notto involve themselves inthefactual meritsofthecase oftheirclientconfining theirdutiestoadvising them Thisstanceofaloofness required by the rules isperfectly warrantedbythestatusofanadvocateunder 20 thelaw, anofficer ofjustice asthelawproclaims himtobe(s 15, Advocates Law,asamendedbys 7,Law 40/75) Advocates who fail to keep their distance andinvolve themselves inthe factual ments of the case oftheir clientswere repeatedly cnticized** By the same token strictures were administered onadvocates who 25 swore affidavits in the cause of the case of their client Such conduct should beavoided unless indispensable mtheinterestof justice*** The facts of thepresent case make it unnecessary to identify exhaustively the range of application of the rules of etiquette. 30 What canbe said with certainty is that they arenot confined to conduct directly and inextncably connectedwith formal stepsin litigation Moreover,theycover actsofmisconductassociatedwith the exercise of anadvocate's profession ina broader senseand certainly cover the conductof the appellant,assubject-matter of 35 present proceedings Theappellant as canbe noticed from his *See interalia InReAΒ anAdvocate

(1969)ICLR 388, InReCΗ anAdvocate

(1969)ICLR 561 "See, interaha,Mavrovoumobsν Nicolaides 14CLR 272,290, MariaΝ Erotocritouand twoOthersv NicosCost}SoutsostΊ965) ICLR 162,Ousmianisν Nicolaou

(1981)2JSC 314 (a decision of the DistnctCourt) •"MichaelAhapittasν RocChikLtd

(1968)ICLR, 1 325 PikisJ. In re I.A. An Advocate

(1987)affidavit, proclaimed his status as an advocate and specified his capacity to be that of advocate of the person whom he guaranteed Evidently he invoked his status as an advocate in order to secure an extrajudicial advantage for his client The affidavit, we remind, was swom to and given in the cause of the 5 maintenance proceedings Before the Distnct Court he asserted that whatever he did he did itoutof asei<se of dutytohis client If thatwas his case he was certainly misguided intheappreciationof his duties The allegations made in the course of his defence before the Disciplinary Boaid are truly disturbing Firsthe alleged 10 that he did notgive trie undertaking embodied intheaffidavit on his own free will but after being blackmailed, allegedly by the Welfare Departmentauthorities Then he alleged thathe did not believethatheaffidavit he gave was legal The mostdisturbing of his allegations before the Disciplinary Board was the one to the 15 effect that he did not give the undertaking in order to serve the interests of thewife but inordertofacilitate hisclienttodepart Luckily for theappellant theDisciplinary Board didnottake his allegations on their face value and did not attribute to him the motives he claimed tohave inspired hisactions According totheir 2C finding he was merely overzealous in supporting his client, overstepping in the process the boundanes of his professional duties Had they accepted ontheir face value his allegations, the punishment imposed, a sentence of £200 -, would have been wholly inadequate Itis a very grave matter for the profession for 25 one of its members to use hisprofessional capacity for anultenor purpose, as appellant claimed to have used it There isno appeal against sentence and that question, we must clanfy, was not debated atall on appeal The distinction thatappellant failed to heed istheonebetween 30 hisclient'snghtsandhisinterests Whileanadvocate must defend, as the rules of etiquette acknowledge (R2),the nghtsof his client fearlessly, he must not associate himself with the interests of his clientas distinctfrom his nghts Ifhe does thatandfailstokeepthe necessary distance from the factual aspects of thecase of hisclient 35 and he becomes, be itindirectly, a party tothe cause of hisclient, a course expressly prohibited by R 16 (Rules of Etiquette),action inconsistentwith his status as an officer of justice The Disciplinary Board isas noticedInRe C Η anAdvocate* a highly responsible and specially qualified body with special 40 responsibility to sustain the standards of the profession in the *

(1969)1CLR 561 326 1 C.L.R. In re I.A. An Advocate PiklsJ. interest of the profession itself and the public atlarge. The public hasanequally vital interestinthesustenanceof theintegrityof the . profession, an interest that must be duly heeded both by the Disciplinary Board andtheSupreme Courtinreviewing decisions 5 of the Disciplinary Board. The Disciplinary Board is in a unique position to earmark theboundaries of professional conductatthe Bar and the form it must take in the continuously changing circumstances of the modem world -Re Τ(a barrister)*. Are the findings of the Disciplinary Board vulnerable to be set 10 aside for misreception of evidence? This is the second issue we must resolve in this appeal. The submission of counsel in connection with this aspect of the case rests on a two-fold legal argument founded on the provisions of s. 17

(7)of the Advocates Law, Cap. 2, and those of s. 4

(3)of the Evidence Law, Cap. 9. 15 Section 17

(7)provides that in carrying out an inquiry into complaints of professional misconduct, it shall have the same powers and shall «conduct the inquiry as nearly as may be as a Court of summary jurisdiction». Inthe submission of counsel this provision makes applicable the rules of evidence, in force in 20 summary criminal proceedings; that being the case, the extract from thejudgment of thetrialCourtcriticising theapplicantshould be declared inadmissible invirtue of theprovisions of s.4

(3)of the Evidence Law, Cap.

1. Otherwise the appellant raised no objection to the production before the Disciplinary Court of the 25 file of the civil action instituted by the complainant against the appellant. Inthe first place the Disciplinary Board did not rest its findings on the comments of the trial Court.They referred tothe relevant extract of thejudgment of the Courtin order to indicate the repercussions upon the profession from conductsuch asthat 30 of the appellant and theway confidence intheprofession could, as a result of such conduct,be undermined.Inthatregard it was perfectly legitimate torefer tothecriticism madeof theconductof the appellant coming from a Courtof law respecting theconduct of an officer of justice. Itis unnecessary to decide in this appeal 35 whether proceedings before the Disciplinary Board are essentialy ofacivilorcriminalcharacter.InEnglanddisciplinary proceedings against members of the Bar are treated as a civil matterwith the burden of proof varying with the gravity of the accusation; the greater the accusation the greater the degree of probability 40 required totipthebalance.We need notgivea definite answer to • 11981)2AllE.R.
2. 327 PikisJ.

(1987)In re I.A. An Advocate thisquestion,saverepeatdictaInRe XWan Advocate*that ahigh degree of certainty is required in order to sustain disciplinary charges. Finally we shall examine the merits of the conviction of the appellant by the Disciplinary Board. Inourjudgment the findings 5 of the Board made the conviction of the appellant inevitable. He crossed the boundaries of his professional duties and involved himselfinawhollyreprehensiblemannerintheaffairsofhisclient. His conduct thereafter fell far short of the standards required of members of the legal profession by Rules 2 and 3. He failed to 10 observe the honour and dignity of the legal profession. The acrimonious litigation in which he found himself involved as a result of deviating from his professional duties, and his conduct and statements made in thoseproceedings, are areminder of the contempt inwhichanadvocate canbringtheprofession asaresult 15 of deviating from the etiquette of the profession. Wefind theappealtobewhollydevoidofmerit.Forthatreason we considered itunnecessarytocallupon Mr.Cleridestoreplyto the submissions ofcounsel forthe appellant. Appealdismissed. •

(1980)1 C.L.R. 187. 328