Legal Ethics and Rules of Professional Responsibility in Fiji
An analysis of the effectiveness of the rules of professional ethics for lawyers in Fiji
Barrister and Solicitor, High Court of Fiji
“For unto whomsoever much is given, of him shall be much required.” Luke 12:48
The concept of “legal ethics” is a vexed one. Philosophers have tried to explain the concept in terms of morality, in terms of a utilitarian commitment to getting the best results in a relationship between lawyer and client, and in terms of adherence to a system of rules which govern the legal profession in a unique way. There is no doubt that lawyers are sometimes obliged to behave in a way that others might consider immoral. One example is the nature of solicitor-client privilege which might overcome s moral duty to report criminal behaviour. Another is the duty to defend, even where the lawyer suspects the guilt of the client.
Utilitarianism is of limited usefulness in this area of ethics, because it may be useful to a client to get a favourable result in a case by bribing witnesses, but such conduct, despite its useful result, is considered unethical. In Fiji, ethical rules have been defined as disciplinary rules. Lawyers and legal commentators often prefer to use the word “rules of professional conduct for lawyers”. The term removes the subject from the debate about morality and the law, to a discussion of the conduct expected of lawyers as is expected of the legal profession globally. There is, nevertheless, a nexus between ethics and morality. In the legal profession, this translates into the overriding duty of the lawyer to the courts, and to fairness, justice and the rule of law. Further, laws which protect the confidentiality of solicitor/client relationships have been modified by new laws which prevent money laundering, and fraud. There is therefore, a closer connection between moral conduct and legal ethics than there has been in the past. What have become important are the public interest, and the protection of the community from unscrupulous lawyers.
It follows that rules of professional responsibility for lawyers, are inherently about the setting of acceptable standards for the legal profession. They are also about the governance of the legal profession, and about the building of trust between the community and the lawyers who serve it. As with all rules of governance, policies and guidelines are unhelpful unless they have certainty and predictability. They are of little consequence unless the consequences for breach of those rules, are proportionate, and are uniformly applied. There can be no room for differential approaches to lawyers of a different class, or of a different political or religious persuasion, for instance. This paper will consider the way in which legal ethical and professional standard have developed in comparable 2
jurisdictions to ours, and will then discuss the effectiveness of the decisions made thus far, in relation to
The English system of regulating the legal profession
The common law of England and Wales developed many principles which regulated the conduct of lawyers, even before the development of codes of conduct. The law of agency, of contract, of tort, of fiduciary obligations, and the criminal law existed to hold lawyers accountable through the courts. There have been lawyers who have been prosecuted for fraud, theft, conversion, and embezzlement. Lawyers have also been sued for breach of trust or of contract.
In addition to specific causes of action, the courts have played a general role in disciplining and controlling the conduct of counsel. This role is based on the common law and procedural principle that all lawyers are officers of the court and therefore can be disciplined for misconduct.1 The difficulty is of course, in the sanctions the courts are able to enforce. Often the courts can only reprimand a lawyer, or refuse him or her audience. In Fiji, such a step was taken by the then Chief Justice in 2001, when he denied audience to all council members of the Fiji Law Society following the events of the 2000 crisis. One of the council members, Florence Fenton, challenged the decision by way of judicial review, and the Chief Justice revised his decision before judgment was given.2
1 In re the Justices of Antigua (1830) 12 ER 321, In re S (a barrister)  1 QB 160
3 This power was limited by the jurisdiction of the visitors and later, by review of the courts. R v General Council of the Bar ex. p. Percival  1 QB 212. Also Judicial Review of the Judges as Visitors to the Inns of Court  Public Law 411
In addition to this inherent jurisdiction, various statutes have regulated the way in which lawyers do their work. Thus in the United Kingdom, the Financial Services Act, the legislation on proceeds of crime, and the Courts and Legal Services Act 1990 provide for responsibilities in relation to financial losses to investors, for reporting suspicious activity by clients in relation to trust accounts, and for costs orders where a lawyer has wasted the time of the courts. The principles which drove, and drive this inherent jurisdiction of the courts in relation to professional conduct, are the need to protect the public from dishonest or incompetent counsel, to deter other lawyers from behaving unprofessionally, and to regulate the courts’ processes so that the business of justice is orderly and honest.
In addition to the common law, and the role of the courts, the Inns of Court in England and Wales have regulated the conduct of barristers for centuries, by adopting codes of conduct.3 The Law Society issued
amendments and changes to reflect the changing role of legal business.4 The Bar Council issued “The Code of Conduct of the Bar of England and Wales” a code which has similarly undergone many changes. The current edition is the 8th edition and came into force in October 2004. Paragraph 104 states that the general purpose of the Code is to “provide the requirements for practice as a barrister and the rules and standards of conduct applicable to barristers which are appropriate in the interests of justice…”
4 It was replaced in 2010 by the Solicitors’ Handbook, a streamlined code of conduct.
5 The protection is limited to work done when litigation is contemplated
6 Price Waterhouse (a firm) v. BCCI Holdings (Luxembourg) SA  BCLC 583
The Bar Council also issues The Equality and Diversity Code which prohibits discrimination in practice at the Bar of England and Wales. Both professions were regulated by disciplinary committees which were run by representatives of the profession. A disciplinary committee for solicitors was established by the 1988 Solicitors Act, although the committee had no powers to discipline until 1919. In 1986 the Law Society established the Solicitors Complaints Bureau, with investigative powers given to the Adjudication and Appeals Committee of the Law Society. Overseeing both committees was the legal services ombudsman, created by the Courts and Legal Services Act 1990. These reforms have now been overtaken and replaced by the creation of the Legal Services Board and the Legal Ombudsman in 2010.
In the past, the Codes were interpreted by the profession itself, and many of the issues were and are political as well as moral. For instance, how much pro bono work should a lawyer offer to do? If resources for legal aid are limited, should the legal profession rally around and fill the resource gap to provide access to justice? Is it an ethical duty? Is it ethical to refuse to do pro bono work?
In fact, even the issue of self-regulation is political. The profession is trusted to protect the public from unethical and dishonest conduct from the profession. Yet because what is moral and what is ethical do not always coincide in the legal profession, we must trust the lawyers themselves to define what is acceptable, and to interpret the rules of conduct in accordance with internal standards. The broader the rules are, the greater the chances of self protective conduct and interpretation, especially when the economic realities of running a practice may lead to pragmatic rather than principled results. The broad principles set out in the English codes protect the principles of secrecy and confidentiality, diligence, and fidelity.
The concept of secrecy, or confidentiality of lawyer/client communications is an ancient one, grounded in public interest considerations of privacy and trust. However, the privilege is the client’s not the lawyer’s, and it does not protect fraudulent or criminal conduct. Furthermore, the courts have not extended the boundaries of the confidential nature of the relationship5, nor have they extended the concept to other professions.6
The principle of diligence requires continuous learning (this is where continuing legal education stems from), and clients have the right to be advised of the legal consequences of any step they propose to take, about alternative steps they could take, and any urgent steps they should take 4
without delay. Diligence also requires advising with reasonable knowledge and skill, within the ambit of their existing skill and without misrepresenting that skill, and acting only within the bounds of their authority. The English codes equate acting without reasonable skill and competence as a form of professional misconduct. This was not always so. However, for instance the Bar Council code states7;
7 Rule 701 of the Code of Conduct of the Bar Standards Board
8 Rondel v. Worsley  3 WLR 950,962
(a) Must in all his professional activities be courteous and act promptly conscientiously diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the court’s time and to ensure that professional engagements are fulfilled;
(b) Must not undertake any task which
(i) He knows or ought to know he is not competent to handle;
(ii) He does not have adequate time and opportunity to prepare for or perform; or
(iii) He cannot discharge within the time requested or otherwise within a reasonable time having regard to the pressure of other work
© Must read all instructions delivered to him expeditiously.”
Fidelity or loyalty is based on the concept of trust. Lawyers are expected to act in the best interests of their clients. It is from this principle that the prohibition on overcharging clients comes from. It is also from this principle that the duty of lawyers to act fairly by their clients, without taking advantage of their vulnerability, arises. Lord Denning M.R put it in this way;8
“*An advocate} must accept the brief and do all he honourably can on behalf of his client. I say “all he honourably can” because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard 5
the most specific instructions of his client, if they conflict with his duty to the court.” (My underling)
The English codes state that lawyers are expected not to engage in dishonest or discreditable conduct and in particular, not to coach witnesses9, or to encourage witnesses to give evidence that is untruthful, or to communicate with any witness even if the witness is his own client, once the witness has started to give evidence. Also prohibited is the asking of questions of a witness which are scandalous, or intended only to vilify or insult the witness.10 A barrister in England may not name in open court third parties whose conduct would thereby be impugned, nor suggest that any witness or third party is guilty of a crime, fraud or misconduct, unless that allegation is relevant to a fact in issue in the trial. Avoiding conflicts of interest is a professional duty that arises from the principle of fidelity. Barristers are expected to avoid appearing in cases where they are likely to be a witness, in cases where they have a personal interest in a client’s case, or where appearing for two clients whose interests conflict. The Law Society code disqualifies the lawyer and the lawyer’s partners where such a conflict arises.
9 Rule 705 of the Bar Standards Code of Conduct is one example
10 Rule 708 (g)
11 See Crawley and Bramell “Professional Rules, Codes, and Principles affecting Solicitors (or What Has Professional Regulation to do With Ethics?) in Ross Cranston “Legal Ethics and Professional Responsibility” Clarendon Press 1995. Note that the Rules for solicitors have now been streamlined since the adoption of the Solicitors’ Handbook
Often conflict of interest cases are more about appearances than actual conflict, and where the clients give informed consent to the appearance, the conflict can usually be waived. Does this mean that a solicitor can act for both the lender and the borrower in a mortgage application? According to the Solicitors’ Practice Rules, there is no conflict in this situation, although the solicitor may advise one or other of the parties to seek independent advice. It has been said that the rules for the conduct of solicitors in the English jurisdiction have become unduly complicated11. However the heart of the rules is not dissimilar to the rules of conduct for lawyers anywhere in the world. That heart can be found in Practice Rule 1 which states;
“ A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following;
(a) The solicitor’s independence or integrity;
(b) A person’s freedom to instruct a solicitor of his or her own choice;
(c) The solicitor’s duty to act in the best interests of the client;
(d) The good repute of the solicitor or of the solicitor’s profession;
(e) The solicitor’s proper standard of work;
(f) The solicitor’s duty to the court.”
England has seen two important reforms in relation to the regulation of the legal profession. One is the adoption of the European Convention on Human Rights and the passing of the Human Rights Act 1998. Human rights law has significantly helped to define the ethical standards expected of lawyers in relation to the rights of persons in the criminal justice system in particular. The second is the movement away from self-regulation towards greater government and institutional regulation. This is a result of the view held by many12 that the legal profession should be more accountable to the public it serves. If self-regulation is to work, the regulators themselves must be accountable, to some external institution. Furthermore, the regulators must be able to create a process which is open to public scrutiny, and is a reflexive regulatory system which encourages dialogue and reflection.
12 See Nicholson and Webb in “Professional Legal Ethics” Oxford University Press 1999 page 90
In England and Wales the regulating of the legal profession was transformed accordingly. The position of the Legal Ombudsman was created in 2010. It is an investigative body, set up to investigate complaints against lawyers. The over-arching regulator is the Legal Services Board, and in one year the Ombudsman investigated over 7000 complaints. There is much discussion in England about whether the Ombudsman should name the lawyers subject of the complaints.13 A new Solicitor’s Handbook is a shorter and more concise version of the old Rules with a new code of conduct which is set out in only 54 pages.
The Legal Services Board was created by the Legal Services Act 2007. Prior to the passing of the Act, a review was carried out into the regulation of lawyers, by Sir David Clementi in 2003. His recommendations were accepted by the government and the Legal Services Act was passed in 2007. The Board is the regulator for the disciplinary bodies of barristers and solicitors. It oversees the Office for Legal Complaints and the Legal Ombudsman to receive complaints about the conduct of barristers and solicitors in England and Wales.
The English regime has therefore moved away from self-regulation to a more accountable system, although there is much debate about whether the system is open and transparent enough for consumer rights to be effective.
The regulation of lawyers in New Zealand is governed by the Lawyers and Conveyancers Act 2006. It creates a regime of semi-self-regulation, and the enforcement of ethical standards is the responsibility of the New Zealand Law Society. Complaints are handled by the Lawyers Complaints Service, and complaints may be about the standard of work done by a lawyer or a law firm, the conduct of a lawyer or law firm, legal costs if the bill is over $2000 and is less than two years old, or failure to comply with an order of the Standards Committee or of a Legal Complaints Review Officer.
Rules of conduct are provided for in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which were made by the Law Society with the approval of the Minister for 7
Justice. The Rules (set out in the Schedule) are not dissimilar to the rules of conduct for barristers and solicitors in England and Wales.
For instance the Preface provides;
“Whatever legal services your lawyer is providing, he or she must-
Act competently, in a timely way, and in accordance with instructions received and arrangements made:
Protect and promote your interests, and act for you free from compromising influences or loyalties:
Discuss with you your objectives and how they would best be achieved:
Provide you with information about the work to be done, who will do it, and the way the services will be provided:
Charge you a fee that is fair and reasonable and let you know how and when you will be billed:
Give you clear information and advice:
Protect your privacy and ensure appropriate confidentiality:
Treat you fairly, respectfully, and without discrimination:
Keep you informed about the work to be done and advise you when it is completed:
Let you know how to make a complaint and deal with any complaint promptly and fairly.”
The fundamental obligations of lawyers are set out in section 4 of the Act itself. They are; to uphold the rule of law and to facilitate the administration of justice in New Zealand; to be independent in providing regulated services to clients; to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; and, to protect, subject to overriding duties as officers of the High Court, and to duties under any enactment, the interests of clients.
Misconduct and unsatisfactory conduct are the bases for discipline by the Disciplinary Tribunal. They are defined in section 6 of the Act. Rule 2.4 provides that;
“A lawyer must not advise a client to engage in conduct that the lawyer knows to be fraudulent or criminal, nor assist any person in an activity that the lawyer knows is fraudulent or criminal. A lawyer must not knowingly assist in the concealment of fraud or crime.”
Rule 2.8 provides for a “whistle-blowing” procedure where one lawyer wishes to report the misconduct of another lawyer in confidence to the Law Society. The reporting is not obligatory.
The rules in New Zealand cover the ethical principles of secrecy, diligence and fidelity. They are also aimed at the accountability of the lawyer to the client, and aim specifically at consumer protection. 8
However, the system, like the system in England appears to lack transparency. How does the public know that lawyers are being effectively disciplined? Are the disciplinary hearings open?
The new system in New Zealand is tougher than the old14 in that penalties have increased significantly (compensation orders may be up to $25,000) and there is a wider range of penalties including the inspection of practices and the remission of fees. Furthermore, the role of the Legal Complaints Officer in New Zealand one is one that is independent of the legal profession. The appointment is made by the Minister for Justice, and the holder of the office must not be a lawyer. The office must be supported by the Ministry for Justice. The Officer also has a prosecutorial role before the Disciplinary Tribunals, a power also given to the Standards Committee. There appears to an overlap of the functions of the Officer and of the Standards Committee, but any tension between the two roles is probably more apparent than real.
14 The Law Practitioners Act 1982
15 South Australia, the Northern Territory and the Australian Capital Territory
16 The Legal Profession Act 2004, NSW
It is clear however that the New Zealand regime has also shifted away from self-regulation to greater government participation in the regulation of lawyers and their standards of ethical conduct. It is arguable that a shift towards transparency, with all disciplinary hearings posted on the New Zealand Law Society website, would give the public a clearer idea of the sort of misconduct which could give rise to legitimate complaint by a client.
In Australia there different systems of professional standards for lawyers in each state. However, they are very similar in terms of the principles they protect. In 2007 the Law Council of Australia commenced a National Profession Project, intended to bring uniformity to the Australian approach to regulating lawyers throughout the country. There has been a clear shift away from self-regulation. Most states now have statutory bodies which administer the rules of conduct of lawyers, and handle complaints, investigate lawyers and law firms, and deal with client and consumer disputes. The rules of conduct are given statutory authority. Law societies are left to assist in investigation on referral by the Commission, or in admission processes. Appeals and reviews of the disciplinary bodies are conducted by the courts. In most states, the serious penalties, such as disbarment are imposed by the courts.
Australian lawyers may be barristers or solicitors, although in some states15 the profession is fused. Professional conduct offences fall into two main categories; unsatisfactory professional conduct, and professional misconduct. Complaints against lawyers in NSW16 are made to the Legal Services Commission which may investigate the complaint itself, or refer the investigation to the NSW Law Society or the Council of the Bar Association. The complaint may be the subject of mediation where it relates to a consumer dispute, but where there is a reasonable likelihood of unsatisfactory
professional conduct or of professional misconduct, the complaint is referred to the Administrative Appeals Tribunal (Legal Services Division) for a hearing. The Tribunal has powers to make extensive orders, including orders to strike off the roll. Clear cases of professional misconduct may be referred directly to the Tribunal by the Commissioner, without an investigation. The Supreme Court of NSW also has inherent powers to control the conduct of lawyers, and may also hear appeals from the Tribunal. It is obvious that the Fiji Legal Practitioners Decree has drawn heavily from the NSW model. However the panel of the Tribunal in original applications is made up of a senior judicial officer, a lay member and a member of the legal profession. The Tribunal also sits, differently constituted, to review decisions in relation to the regulation of lawyers.
The hearings of the tribunal and its decisions are made public. They are available on the website of the Administrative Decisions tribunal. For the bored law student with a spare moment on a Sunday afternoon, they make for fascinating reading.17 They also provide evidence of how well (or how badly) the system of regulation works in NSW. The system in Australia generally, and in NSW specifically appears to satisfy the criteria of accountability and transparency, with an obvious shift away from self-regulation, towards statutory regulation.
18 Published last on 8th August 2011 (New South Wales Bar Association)
The NSW Barristers’ Rules18 set out the professional and ethical principles in this way;
“These Rules are made in the belief that:
(a) Barristers owe their paramount duty to the administration of justice;
(b) Barristers must maintain high standards of professional conduct;
(c) Barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, and with competence and diligence;
(d) Barristers owe duties to the court, to their clients, and to their barrister and solicitor colleagues;
(e) Barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients; and
(f) The provision of advocates for those who need legal representation is better secured if there is a Bar whose members:
(i) Must accept briefs to appear regardless of their personal beliefs;
(ii) Must not refuse briefs to appear except on proper professional grounds; and
(iii) Compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable.
The Rules then set out general duties, the role of the barrister and the duties of the barrister in relation to the court and the client. Duties include a specific duty to disclose all relevant material in an interlocutory application made ex parte, except where such disclosure is in breach of client confidentiality.19
19 Rule 29, see also Rule 30 and Rule 31
20 Rule 61 and Rule 62
21 Rule 79
22 Rules 82-94
23 Rules 95-114
24 Rule 108
Rule 37 states;
“ A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.”
There is a prohibition on questioning of witnesses which is intended to mislead, or confuse, or vilify, or harass a witness20 and a prohibition on making allegations without a factual basis. Rule 76 provides specific guidance on dealing with the media. A barrister may not make any statement or comment on matters in current proceedings unless he or she is asked unsolicited questions about the parties, any witness called, the nature of the issues, the nature of any orders made, and the client’s intentions as to the next steps to be taken. Pleadings can be given to the media but only on instructions from the client, and only in accordance with the court processes and requirements.
Where a barrister discovers that a client has lied in the course of court proceedings, the barrister must refuse to take any further part in the case unless the court is informed of the falsehood. Where the client has confessed guilt to the barrister, the barrister may proceed with a not guilty plea, but only to the extent that the case is run in a way that it is consistent with the confession made to the barrister.21 The Rules deal with the duties of prosecutors22, with conflict of interest23 and with duties of confidentiality24.
The rules are comprehensive, useful to practitioners, and based on the ethical principles of secrecy, diligence and fidelity. Generally, the Australian models of the regulation of lawyers seem to satisfy the requirements of an accountable, transparent and workable method of enforcing ethical professional standards on the legal profession. It also shows a notable move away from self-regulation, towards external statutory regulation over which, ultimately, the courts exercise the greatest control. 11
Fiji’s Legal Practitioners Decree creates a pared down version of the NSW model of regulation lawyers. The Code of Conduct is a schedule to the Decree. It is not as comprehensive as the codes and rules in other jurisdictions. However, an understanding of various other models of regulating lawyers in the common law world helps us to understand the status of ethical rules in Fiji, and the effectiveness of the disciplinary process created in Fiji in 2009. Any analysis of the Fiji situation also requires a consideration of cases before the Tribunal, and a comparison of the current model, with the model it replaced.
The legal profession was almost entirely self-regulated until 2009. Prior to the Legal Practitioners’ Decree, the Legal Practitioners Act provided that lawyers be regulated by disciplinary tribunals set up by the Law Society itself. Investigations were also carried out by the Law Society. Prior to the Legal Practitioners Act 1997, its predecessor, the Legal Practitioners Act Cap 254, provided that lawyers were to be disciplined by committees appointed by the Chief Justice. The hearings were closed, and on review by the courts, the presiding judges took care to suppress the names of the erring barristers and solicitors.25 There were few investigations and prosecutions. The cases are not reported on any website. However, the cases in the High Court, on review from the disciplinary tribunals, are public judgments. The rules of professional conduct under the Act were identical to the rules in the 2009 Decree.
25 See for example Re a Barrister (1999) 45 FLR 59
26 Currently Commissioner John Connors, formerly a judge of the High Court of Fiji
27 Section 113
The Legal Practitioners Decree 2009 created the Legal Education Board, the Independent Legal Services Commission, and a process of applying for practising certificates from the Office of the Chief Registrar. The Fiji Law Society continues in existence, but membership is voluntary. It is not known how many members it currently has. However, it roles and objects are set out in section 13 of the Decree. It plays no role in the discipline of lawyers, except in the assisting of its members in the conditions of practice and “otherwise”.
Admission to practice continues to be the role of the Chief Justice and Practising Certificates are issued by the Chief Registrar. The Chief Registrar is also the person responsible for receiving and investigating complaints against lawyers. The Legal Practitioners’ Unit (which has no statutory status but which conducts all prosecutions on behalf of the Chief Registrar) operates under her supervision. Two lawyers, and an investigator seconded from the Fiji Police Force are members of the Unit. Section 52 creates the offence of practising without a practising certificate. Sections 81, 82 and 83 define what is unsatisfactory professional conduct, and professional misconduct. Section 84 establishes the Independent Legal Services Commission, presided over by a Commissioner26 who is appointed by the President. The Decree provides that all hearings will be in public27 and section 129 sets out the rules of professional conduct.
Section 81 states as follows; 12
“For the purposes of this Decree, “unsatisfactory professional conduct” includes conduct of a legal practitioner or a law firm or an employee or agent of a legal practitioner or a law firm, occurring in connection with the practice of law that falls short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent or professional legal practitioner or law firm.”
Section 82 provides;
“(1) For the purposes of this Decree, ‘professional misconduct’ includes –
(a) Unsatisfactory professional conduct of a legal practitioner, a law firm, or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence; or
(b) Conduct of a legal practitioner, a law firm or employee or agent of a legal practitioner or law firm, whether occurring in connection with the practice of law or occurring otherwise than in the connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or that the law firm is not fit and proper to operate as a law firm”.
Section 83 provides inter alia that conduct in contravention of the Decree, or of the Rules of Professional Conduct is capable of being “unsatisfactory professional conduct” or “professional conduct”.
The Rules are in the Schedule to the Decree. They cover relations with clients, advertising, relationships with the court, duties of prosecuting counsel, and of defence counsel, relations between practitioners, the conduct of practice, client care, and corporate practice. They cover the main principles of ethical conduct for lawyers. However, they are not as comprehensive as the rules of conduct in the English jurisdiction, or indeed in the NSW Bar Association rules of conduct. For instance, the NSW Bar Association rules deal with a situation where a brief may not be refused except on professional grounds. In Fiji, where political opinions affecting a trial and representation may have affected the professionalism at the Bar, this duty ought, in my view, have been spelt out. Whatever the lawyer may think of the political views of an accused person, he or she is entitled to legal representation. Other codes of conduct have spelt this duty out. Fiji has not. Nor does the Fiji code deal with what a lawyer might be able to say when accosted by the media as he leaves the courtroom with his or her client. The NSW codes spell this out. Nor do the Fiji Rules spell out the duty of counsel when his or her client misleads the court to the knowledge of counsel. The English and Australian codes make it clear that counsel can only continue to act for the client if counsel is able to disclose the falsehood to the court. Fiji’s Rules do not assist the lawyer in this dilemma.
The cases heard by the Commission in 2010 and 2011 cast an interesting light on the practice of law in Fiji, just as the Tribunal website of published cases in NSW, cast an interesting light on the practice of law in that jurisdiction. This is the first article published, which attempts to analyse the completed hearings before the independent Services Commission in Fiji, and such an analysis is intended to assist lawyers and the public to recognise the ethical and professional standards that Fiji as a 13
jurisdiction, aims for. The decisions are important because they showcase the effectiveness or otherwise of the enforcement of ethical standards for Fijian lawyers since the 2009 Decree was passed.
One of the earliest cases to be filed before the ILSC was that of an alleged breach of section 83 (1) (d) (i) of the Decree28 in which it was alleged that the practitioner attempted to pervert the course of justice by advising a prosecution witness in a corruption trial (in which the practitioner was defence counsel) to change his evidence from the version recorded in the police witness statement form. He had been convicted after his plea of guilty to the charge of attempting to pervert the course of justice29 and the conviction was upheld on appeal to the Supreme Court. At the time the practitioner served his sentence (a 12 month term was reduced to 6 months which was eventually served extra-murally) the Law Society, acting under the then-operative Legal Practitioners Act, had refused to renew his practising certificate, apparently without a hearing. However, it was issued on the recommendation of Byrne J when the practitioner filed a motion before the High Court seeking orders to have his practising certificate restored. He was then investigated and found guilty of professional misconduct by the Independent Legal Services Commission on the 25th of January 2010.Relying substantially on decisions of the NSW Administrative Tribunal and the NSW Court of Appeal’s decisions on the nature of the jurisdiction and ethos of the regime of disciplining lawyers, the Commission found that the practitioner had been convicted of an offence which involved “moral turpitude” in relation to a crime which reflected directly on his practice as a lawyer. He found him guilty of professional misconduct saying30;
28 Chief Registrar v. Abhay Singh No. 001/2009
29 Abhay Kumar v. State Criminal Appeal CAV 205 0f 2008S
30 At page 11 of the judgment
31 It alleged that land was to be transferred by the client to the practitioner in lieu of the balance of fees
32 Civil Appeal CBV 007/2010 per Marsoof, Hettige and Calanchini JJ
“The authorities to which I have referred make it clear that when the conduct is of a professional as distinct from a personal nature that it must have a much more direct bearing on fitness to practice. There is an obligation to protect the public from practitioners found guilty of dishonesty in the face of the court. It is difficult to perceive of a more serious offence that a lawyer could commit in breach of his professional obligations than attempting to pervert the course of justice. It calls for the ultimate penalty, that the respondent’s name be removed from the roll of legal practitioners.”
A second complaint in relation to the same practitioner was dismissed31 and a third complaint of conflict of interest in representing both parties to an agreement resulted in a finding of professional misconduct. He was fined $1000 in relation to the third complaint and was disbarred in relation to the first. On appeal the Supreme Court32 the finding of guilt was upheld but the period of disbarment was reduced to 6 years. 14
In Case No. 007/200933 the Chief Registrar complained of a legal practitioner, who, having received funds of $258,000 from the office of the Attorney-General to pay specified persons, instead paid the person who had brought a representative action on behalf of the specified persons. The High Court had ordered that the judgment sum be distributed in specified amounts amongst the claimants. The practitioner said that he had paid the person who had instructed him, in accordance with his instructions. The Commission held that the practitioner had an overriding duty to the court, over and above his or her duty to the client. The Commissioner said34 at page 2 of his judgment;
33 Chief Registrar v. Akuila Naco
34 Commissioner John Connors
35 Chief Registrar v. Dorsami Naidu. This case is currently on appeal to the Court of Appeal. Stay of the orders of the Commission was refused by the Court of Appeal on 2nd March 2011
“The aim of professional disciplinary proceedings is a means to safeguard the reputation of the profession – Southern Law Society v Westbrook (1910) 10 CLR 609. Related to this are the objectives of maintaining proper standards in the profession and setting an example to other lawyers……It cannot be denied to this end, that a disciplinary sanction may deter other lawyers from engaging in the impugned conduct and also deter the lawyer disciplined and so indirectly protect the public against like defaults. It is said that this means that a court or tribunal, in making a disciplinary order, takes account of the message that the order conveys to other lawyers – Re Drew (1920) 20 SR (NSW) 463, 466”
A second complaint against the same practitioner was that in a mortgage and vacant possession matter, the practitioner failed to appear in court for his client, causing judgment to be entered in default against the client. The client had paid the practitioner fees to appear and represent him. The Commission publicly reprimanded the practitioner and ordered him to pay compensation to the aggrieved complainants on each complaint.
In Case No. 005/201035 a practitioner faced fourteen complaints of unsatisfactory professional conduct contrary to section 81 of the Legal Practitioners Decree. Of these complaints, the commission found him guilty on 5 of unsatisfactory professional conduct, and 2 counts of unprofessional conduct. One of the complaints was that the practitioner appropriated $3,750 as fees from a sum received on behalf of his client, without submitting a memorandum of fees. Another complaint was that he had drafted an agreement for the purchase of land on behalf of the purchaser, without informing his client that the land was co-owned by another person and that therefore the agreement was unenforceable. Another complaint was that the practitioner failed to take steps to reinstate proceedings against the Fiji Times which proceedings had been struck out, and then failed to return the file to his client so that he could instruct alternative counsel. There was consequent delay in the reinstatement of proceedings. The Commission, in deciding on penalty, took into account the fact that the practitioner was the President of the Law Society, and a past parliamentarian. He ordered the practitioner “to undertake not less than 10 hours of professional development or legal education in each of the following disciplines: Conveyancing, real property, and Practice Management. The study is to take place in Fiji, New Zealand, or Australia and the syllabus or programme is to be approved by the Chief Registrar.” The practitioner was also ordered 15
to pay $1500 as a fine to the Commission, and to pay witness expenses to three witnesses in the hearing before the Commission. He was also ordered to arrange for the transfer of title to one of his clients, of land which was the subject of one of the complaints. The practitioner has appealed against the findings of the Commission. However his application for stay of the Orders was refused by Marshall J.A. on the 2nd of March 2011 on the ground that the practitioner had failed to show that the appeal had exceptional chances of success. In the course of the application for stay, it was argued on behalf of the practitioner, that there was no prejudice to the client if the agreement that had been drafted was incompetent, because the co-owner was not required to sign the conveyance document, and that a practitioner under the Decree owes no duty to any person other than his or her client. The person who was prejudiced it was argued, was the vendor, who was not the practitioner’s client. His lordship said this on the duty of a lawyer to draw up competent agreements36;
36 Dorsami Naidu v. Chief Registrar Civil Appeal ABU 0038 of 2010 at page 11
37 Chief Registrar v. Haroon Ali Shah
“ I accept that in most cases if the solicitor is negligent or not conducting himself properly, it will only affect and damage the client. But I am sure that vendor and purchaser is an area where Conveyancing incompetence can affect all persons relying on proper and effective performance of the solicitor regardless of who pays the fees. Joint ownership of property is an area that requires special care and skill. When one considers trust and trust property in my view there are likely to be persons other than the client who are directly and adversely affected if the documents are not competently drawn up so that they are effective.”
His lordship was of course deciding the matter on an interlocutory stay application. It will be interesting to see what the Full Court has to say about the overriding duty of lawyers to deliver competent services, over and above the specific duty to a client.
In Case No. 001/201037 the practitioner was alleged to have been guilty of “ a substantial failure to reach a reasonable standard of competence and diligence” in relation to his convictions in the Lautoka Magistrates’’ Court on 6th June 2005, of assault occasioning actual bodily harm and criminal damage. The facts before the Commission were as they were at the Lautoka Magistrates’ Court. The practitioner represented the son in a father/son dispute. The parties were encouraged by the judge to settle the dispute out of court. Outside the courtroom, the father approached the practitioner without his lawyer. There was an exchange of words, and the practitioner pushed and punched his client’s father, causing his spectacles to be broken. The presiding magistrate in the assault case found that there had been significant provocation from the father during the incident. He was fined a total of $1500 after a trial on both charges. Conviction and sentence were upheld by the High Court. The Commission found that a criminal conviction (excluding traffic offences) is capable of leading to a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, but that such a finding would usually only be made if the Commission could conclude that the conduct that was the subject of the conviction was in connection with the practice of law or that the conduct fell short of the standard of conduct expected of a reasonably competent and 16
diligent practitioner. In this case the Commission found that the conduct, that is the assault of a party to proceedings in which the practitioner was involved in the precinct of the court was such that a conclusion could be reached that the practitioner was not a fit and proper person to engage in legal practice. In a separate case38 the same practitioner was alleged to have committed a number of other disciplinary offences, in relation to conveyancing transactions for the sale and purchase of land. It was alleged that excessive legal fees were charged for certain transactions. Most of these complaints were dismissed, the Commission finding that in the absence of expert evidence about what reasonable fees might be for these transactions, it would be hard to conclude that the practitioner had charged unreasonably high fees. However one complaint, of failing to account for cane proceeds which had been deposited into the practitioner’s trust account, was found to be proved, as well as an allegation that the practitioner had charged a client for the issuing of a liquor licence for a hotel when no such licence had been issued, and that the practitioner had failed to ensure that debts and encumbrances had been paid off before the transfer of the title of the hotel.
38 No 008/2009
39 Chief Registrar v. Hemendra Nagin
The Commission ordered the practitioner to pay $7000 for the complainants in the hotel transfer complaint, and witness expenses totalling $2881. The practitioner was also ordered to undertake five criminal trials for the Legal Aid Commission at no cost, failing which his practising certificate would be suspended for five months.
The Commissioner had this to say about the legal fees regime in Fiji;
“150. The allegations in this matter highlight the need for there to be a major overhaul of the requirements of legal practitioners with respect to the disclosure of fees at the commencement of matters, fee arrangements, and the rendering of memoranda of fees.
151. In other jurisdictions for in excess of 10 years fee disclosure and fee agreements have been mandatory. Without compliance with these requirements fees for work performed are not recoverable from the client.
152. The numerous instances that appear in these complaints of monies being paid without any memorandum of fees being rendered and the subsequent dispute as to the purpose for which the fees were paid (i.e. what work was obliged to be performed for the fees that were paid) begs for proper procedures to be established.”
In Case No. 002/200939 the practitioner was found guilty of two counts of unprofessional conduct, and pleaded guilty to a third. All counts arose out of the same transaction, in which the practitioner acted for the vendor, purchaser, mortgagee and real estate agent in one conveyancing transaction. As a result of this conflict of interest, the complainants “are being sued by the real estate agent for commission on what was an artificial sale price. They have incurred or will incur legal costs of 17
$15,000 with respect to the sorry saga and have faced anguish over what should have been a relatively straightforward conveyancing transaction.”40
40 Judgment on Sentence Page 1
41 Chief Registrar v. Sheik Hussein Shah
42 Chief Registrar v. Vipul Mishra, Mehboob Raza, Dr Muhammed Shamsud-Dean Sahu Khan, and Sahu Khan and Sahu Khan The matter is currently on appeal to the Court of Appeal.
The Commission issued a public reprimand, and ordered the practitioner to pay the Commission $15,000 which in turn was to be paid to the complainants. The practitioner was also ordered to pay to indemnify the complainants for any sum of money ordered by the court to be paid by the complainants in relation to the civil action against them.
In Case No. 004 of 200941 the practitioner was alleged to have issued a trust account cheque that was subsequently dishonoured, filed a statement of claim without specifying a cause of action, failed to keep his client informed of the progress of his case, and failed to appear in court after accepting a fee on behalf of his client. The practitioner admitted the allegation in relation to the trust account cheque. Also proven was the charge of failing to appear in court for trial having accepted fees for doing so. The commission ordered him to pay sums of money to the Commission as compensation to the clients, and to pay for witness expenses.
In Case No. 002/201042 there was a long and complicated history in relation to a Crown lease situated in Ba. The complainant having negotiated the purchase of the land from the vendor instructed the second practitioner. The vendor was represented by the first practitioner. The vendor had initially held the land for 10 years from 1974. This term had been extended for 20 years from 1974. The vendor then mortgaged the land to the British American Insurance Company, which mortgage was then transferred to the Reserve Bank on 1998. The mortgagee was represented by Cromptons. In 1988, the Director of Lands had registered a caveat in respect of the land. In 2003 or sometime before that, the vendor borrowed money from one Farouk Ali and Air Terminal services Employees Trust, and gave the lenders a Bill of Sale and Crop Lien. The first practitioner was given instructions to evict the caretaker placed on the land by the Reserve Bank, and was informed, by Cromptons, of the mortgage over the land. The vendor then applied for the renewal of the lease, which was due to expire in 2004. The renewal was granted for 30 years and the lease was registered. When the duplicate lease was returned it bore no endorsements or memorials. In fact the registered lease bore a mortgage, a caveat and an extension of lease.
Cromptons wrote to the Director of Lands asking for the new lease to be endorsed with the mortgage. The letter was forwarded to the Registrar of Titles. In October 2006, the complainant delivered the purchase price to the office of the first practitioner. On the same day, Cromptons wrote to the first practitioner by fax, detailing the amount of money owed under the mortgage, and stating that the mortgage should have been endorsed on the lease. Nevertheless, the first practitioner proceeded to settle the purchase and disbursed the money to the vendor. Two days later, the second practitioner on behalf of the purchaser, lodged the transfer with the Titles Office. 18
In May 2007 the documents were rejected by the Registrar because it did not show that it was subject to a mortgage and a caveat.
The third practitioner represented Farouk Ali. On obtaining judgment against the vendor, he sought to register the judgment against the land. He made a declaration that he had caused a search against the title and that the land was free of encumbrances, liens, caveats and mortgages. The judgment was then registered against the title in July 2007. By that date, the title showed both the caveat and the mortgage. The title still showed that the registered owner was the vendor. The complainant’s interest had not been registered against the title despite correspondence between the second practitioner and the Registrar of Titles on the subject.
The complainant then went to see another practitioner (now deceased) having obtained her file from the second practitioner. At that time, proceedings were on foot between Farouk Ali (represented by the third practitioner and his firm) and the vendor. The matter was settled, and although the purchaser was not a party to the proceedings, she was ordered by the court to pay Farouk Ali $120,000 and it was ordered that the land be transferred to her but subject to the mortgage and caveat. It was also ordered that she pay any amount due under the mortgage if it was held that the land was subject to the mortgage at the time that the transfer to her was lodged for registration. It was also ordered that the judgment creditor would indemnify the complainant if the mortgage was held to be validly endorsed. The complainant was then advised by her lawyer (now deceased) to sign a “Deed of Guarantee and Indemnity” which provided that she was to pay Farouk Ali $120,000 as “purchase price” that the guarantor (the third practitioner) undertook to arrange a loan of $120,000 for the complainant, that she was to bring an action in damages against the Registrar of Titles for failing to register her interest in 2006, that any damages received would be paid to the guarantor, that the complainant gives her irrevocable authority for the third practitioner to take any action for damages against the Registrar and that the agreement was null and void if such authority were to be terminated by the complainant.
In subsequent proceedings in the Lautoka High Court, the complainant was represented by the deceased lawyer. In October 2008, the third practitioner drew a total of $120,000 from the trust account of his firm and deposited it in favour of the complainant and endorsed in favour of Farouk Ali. On the 6th of December two Bills of Sale were executed in favour of one Mehrul Nisha in relation to these sums. Judgment was delivered in the Lautoka High Court on 4th December 2008, dismissing the notice of motion filed by the complainant and the judgment creditor Farouk Ali. The third practitioner advised the complainant to appeal the decision. She did not do so, and the third practitioner treated the indemnity agreement as having been terminated. The third practitioner then proceeded against the complainant in the Ba Magistrates’ Court on behalf of the assignees of the promissory notes, to recover the money advanced.
The Commissioner in his judgment said of this history;
“The fact that a member of the public who engaged a solicitor to carry out a simple conveyancing transaction should pay the purchase price and then have on her title a mortgage to the Reserve Bank and a judgment debt and having been encouraged to borrow funds to meet that debt is now being sued to recover those monies is an indictment on the legal profession in Fiji.” 19
The first practitioner was found by the Commission to be guilty of professional misconduct on two counts. The second practitioner was held not to have performed work with the level of competence and diligence that members of the public are entitled to expect, and was found guilty of professional misconduct. The third practitioner was held to be guilty of professional misconduct on one out of four counts. Some of the charges laid were dismissed. One was that the first practitioner had executed an agreement that falsely stated that the title was free of encumbrances. Another (Counts 5,6 and 7) was that the third practitioner and his law firm had executed the deed of guarantee in an unprofessional way. The Commission found that at the time the complainant had been represented by her own counsel, and that she had acted on his advice.
The first practitioner was ordered to do everything necessary to facilitate the removal of the mortgage from the title and to indemnify the complainant against any action taken on the mortgage. If the mortgage was not removed by the 31st of December 2011, the first practitioner’s practising certificate was to be suspended. He was also fined $10,000 and ordered to pay witness expenses. The second practitioner was fined $10,000 and the sum of $600 in legal fees was to be refunded to the complainant. The third practitioner was ordered to indemnify the complainant any sums payable by her as a result of the civil action brought in the Ba Magistrates’ Court, to pay principal and interest on the loan of $120,000 referred to in the Deed of Guarantee, and to pay witness expenses. His name was ordered to be struck from the roll of legal practitioners.
The third practitioner attempted to have the orders against him stayed, first at the Commission, and then at the Court of Appeal43l. Both applications were refused. The appeal itself is pending.
43 Civil Appeal No ABU 0016 of 2011 per Marshall JA
44 Chief Registrar v. Muhammed Shasud-Dean Sahu Khan
Another case against the third practitioner44 001/2011, also about a conveyancing matter, in relation to the transfer of the mortgage of a Crown lease, was filed before the Commission at about the same time. There were eleven counts, all alleging professional misconduct/unprofessional conduct, of which counts 4 and 11 were found not to be proved. The Commission found that
“ the main cause for complaint related to the transfer of mortgages and the enforcement of those mortgages which were over a parcel of land in Labasa…….the respondents continued to act for Krishna Dutt and or his parents and repeatedly acted against them in seeking to enforce the rights of the mortgagees from time to time….The situation was on each occasion alleviated by the replacement of the mortgagee i.e. the mortgage was transferred to another of the Respondent’s clients.”
The Commission found the practitioner guilty on seven counts of professional misconduct and one count of unprofessional conduct. The practitioner had already been disbarred, and the orders made in this case were that the practitioner could not apply for a practising certificate for 10 years, that he had to pay witness expenses, and that his law firm should cease to operate or engage in legal practice. 20
These were the cases before the Commission where there had been findings of professional misconduct or unprofessional conduct. Two practitioners were charged with practising without practising certificates45 and they each received a public reprimand. One of the two practitioners (004/2011) was also ordered to pay a fine of $1000.
45 Chief Registrar v. Siteri Adidreu Cevalawa Case No. 006/2011 and Chief Registrar v. Adi Kolora Nailiva Case No.004/2011
46 Chief Registrar v. Alena Koroi Case No. 005/2011
47  NSW ADT 194, paragraph 17
Only one case was in relation to discourtesy in court.46 In that case, the practitioner was charged with unsatisfactory professional conduct. The charge was that she raised her voice at the judge in the High Court in which she was counsel in civil proceedings. When asked to calm down, she continued to raise her voice. The Commission found that where a lawyer showed discourtesy to the court, whether or not such discourtesy amounted to contempt of the court, such conduct could be unsatisfactory professional conduct. The Commission cited with approval the following passage from the NSW Administrative Tribunal in NSW Bar Associates v. di Savero47;
“Any advocate appearing before a court in this state does so as a member of a learned and noble profession. He or she has the privilege granted by law of appearing for citizens, corporations and governments. Courts are entitled to expect from the advocate competence, honesty, integrity and learning. The advocate is immune from suit for defamation in respect of anything which he or she says during the course of court proceedings. This privilege is one which can be abused and if it is abused in our opinion, serious harm is caused not only to the persons involved in the matter but to the legal profession. Apart from this, such abuse of privilege, harms the reputation and standing of the advocate and damages the relationship of trust which should exist between advocates and the Bench.”
The practitioner’s sentence is scheduled to be delivered this month.
Fiji and Legal and Professional Ethics
A comparative analysis of the system of regulating lawyers and enforcing ethical and professional standards, shows us that most jurisdictions in the common law world, have moved away from self-regulation towards a more transparent and exacting form of regulation. The emphasis is now less on the morality of legal work, and more on consumer protection. The creation of the Legal Services Board and the Legal Ombudsman in the English jurisdiction, the creation of statutory bodies in Australia and New Zealand such as the Legal Services Commission and the Complaints Review Officer, and of the Independent Legal services Commission in Fiji, demonstrate a clear shift towards external regulation, with law societies and bar associations playing a supporting role rather than the main feature. Even codes of conduct have moved away from being a list of ethical principles to providing practical guidance for lawyers and the public in practical situations. 21
Can I appear on television to explain my client’s case? What fees are reasonable? How much information should I give my client about the progress of a case? Can I appear for the bank and the borrower? If I swear an affidavit to support a leave to appeal application, can I continue to act as counsel?
Whilst the roots of codes of conduct lie in ethics, the modern code of conduct for lawyers reads more like a practical guide for lawyers in the difficult and demanding world of modern legal practice. Modern day ethics is as much about consumer rights, as it is about the morality of working as an advocate.
The cases before the ILSC in Fiji, demonstrate particular problematic areas in Fiji. The world of conveyancing seems to give rise to more than its fair share of consumer complaints. Conflict of interest and charging a fair fee for legal services are also potentially problematic areas. In Case No. 002/201048 the Commissioner made the following further observations in delivering sentence;
48 Chief Registrar v. Sahu Khan ibid
“In a country such as Fiji where the level of literacy and understanding is not as high as in developed countries the position held by a legal practitioner is even more special and the responsibilities are even greater.”
A further significant issue is that there are many complaints of over charging fees. In the absence of a proper fee schedule or structure, such complaints are hard to substantiate. Yet, legal fees, how much, how often, and what for, are issues that go to the heart of solicitor/client, and solicitor/public relationships. On a comparison with other rules of practice, the Fiji rules lack specific guidance on fee structures, conflicts of interest, and duties to disclose information to clients. It may be time to revise and review the rules of practice in the Legal Practitioners Decree, in the light of the cases heard in the ILSC and the experiences of other countries.
The legal profession globally has moved away from the strict seclusion of self-regulation. Society has demanded a greater accountability of lawyers to the clients they serve. In many countries, where access to justice is limited and where lawyers could easily become a barrier to justice instead of a catalyst for better access to the courts, codes of conduct and of rules of practice need to have a greater degree of transparency and enforceability However codes of ethics need to be as workable as they need to be based on the ethics of legal practice. They need to provide guidance for lawyers faced with the dishonest and fraudulent client, with legislation such as the Financial Transactions Reporting Act which affects solicitor/client confidentiality, and with the daily pressure of work when there is an ethical expectation of diligence. Fiji’s rules of professional conduct may require revision in the future to help practitioners to balance efficiency with consumer sensitivity, and morality with the practicalities of the demands of the legal profession in the 21st century. 22