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Gordon & Chaudhry Lawyers v State [2011] FJHC 403; HAC16.2010 (19 July 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO.: HAC 16 OF 2010

In the matter of an application for withdrawal of Counsel brought under the inherent jurisdiction of the High Court in criminal matters.

BETWEEN:

GORDON & CHAUDHRY LAWYERS
APPLICANT

AND:

STATE
RESPONDENT

Counsels: Applicant - Mr Valenitabua, S
Respondent - Ms. Puamau, S

Date of Hearing: 18/07/2011

Date of Ruling: 19/07/2011

RULING

1. The Application before the Court is by counsel for the accused persons for leave to withdraw as counsels. This is the third application in a row, where the earlier two were dismissed vide written rulings dated 23/06/2011 and 29/06/2011 respectively.
   
2. The instant application is based on the ground that the counsels have filed a writ of summons against the accused persons for breach of contract in failing to keep their undertaking to pay retainer fee in terms of their retainer agreement. The writ was filed on 18/July/2011.
3. The counsel further urged that there is potential that the lawyers would be witnesses in the civil case which give rise to conflict of interest.
   
4. The application is opposed by the State on the ground that there is no possible conflict of interest on the facts of the case.
   
5. I have in detail dealt with the aspect of unpaid fees in my rulings dated 23/06/2011 and 29/06/2011. I need not go further into this aspect and shall comment on the aspect of conflict of interest.
   
6. Filing a writ of summons for unpaid fees as agreed, is the prerogative and right of a lawyer. In this case the filing of the writ in itself does not create any conflict of interest between the lawyer and the accused persons. The civil case can proceed independently of the criminal case and without any obstacles to the criminal defence that the lawyers may present on behalf of the accused persons. Further the counsel should act diligently and competently and the court should presume that lawyers act ethically, as I mentioned in my said earlier rulings.
   
7. I am of the view that this filing of the writ of summons could have waited until the conclusion of the criminal proceedings, but it was filed to allow a fresh ground to base the instant application for leave to withdraw. This application was filed soon after the ruling on Voir dire was delivered and immediately before the commencement of the trial proper. It appears that having filed two earlier applications, the counsel for the accused persons have discovered a procedure to circumvent the earlier orders of the Court. This in my view is prejudicial to the accused persons and therefore I dismiss this application forthwith.
   

Priyantha Fernando
JUDGE

At Suva
19th July, 2011.