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Chief Registrar v Sharma [2018] FJILSC 4 (20 September 2018)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION

Application No. 012 of 2015 and
No. 015 of 2015

BETWEEN:

CHIEF REGISTRAR

Applicant

AND:

SURUJ SHARMA

First Respondent

AND:

PATEL SHARMA LAWYERS

Second Respondent

Coram: Dr. T.V. Hickie, Commissioner

Counsel for the Applicant: Mr. A. Chand
Counsel for the Respondent: Mr. D. Sharma and Mr. N. Lajendra

Dates of Hearing (14 days):

• December 2016 Sittings - 5^th and 6^th December 2016;
• June 2017 Sittings - 5^th, 6^th, 7^th, 8^th, 9^th June 2017;
• September 2017 Sittings - 18^th, 19^th, 20^th, 21^st, 22^nd September 2017;
• April 2018 Sittings - 25^th April 2018 (Clarification Hearing on written submissions);
• June 2018 Sittings - 13^th June 2018 (Supplementary Clarification Hearing).
  

Mentions once hearing commenced:

• February 2018 Sittings - 5^th February 2018 (Mention and Orders);
• 23^rd April 2018 (Mention and Orders); and
• June 2018 Sittings - 4^th June 2018 (Mention and Orders).
  

Dates of Written Submissions:

• Applicant (8^th January 2018)
• Respondent (31^st January 2018)
• Applicant in Reply (20^th February 2018)
• Respondent’s Synopsis (25^th April 2018)
• Applicant in Reply (4^th May 2018)
• Respondent’s Supplementary Submissions (4^th June 2018)
  

Date of Judgment: 20^th September 2018

JUDGMENT

____________________________________________________________________

Table of Contents

Preface

[1] The following judgment provides a very good example as to the importance of having an Independent Legal Services Commission in Fiji. Evidence was taken over three Sittings commencing in December 2016 and concluding in September 2017, with a transcript totalling over 1500 pages. There were 86 Exhibits tendered (including copies of two files from the High Court, one of which was of some 526 pages comprising an entire court transcript, exhibits and numerous unpaginated documents). Counsel for the Applicant Chief Registrar filed two sets of written submissions totalling 57 pages with 506 paragraphs. Counsel for the Respondent filed one set of written submissions of 48 pages comprising 114 paragraphs with numerous sub-paragraphs. In addition, oral submissions were made by each Counsel at a clarification hearing on 25^th April 2018, followed by 98 paragraphs of supplementary submissions filed by Counsel for the Respondent and then submissions in reply by Counsel for the Applicant. This, in turn, required a supplementary clarification hearing to be held on 13^th June 2018.

[2] In light of the above, for well-meaning members from the legal profession to have sat as a Disciplinary Committee and heard this matter in addition to their already busy professional lives (as previously would have been the case) and then produce a written decision resolving the multiple issues of law and fact raised whilst doing justice to all involved, would have been an unenviable task. In that regard, I acknowledge the time and effort spent in such adjudications previously by Disciplinary Committees. (See, for example, In Re A Barrister and Solicitor [1999] 45 FLR 59; PacLII: [1999] FJLawRp 11, <http://www.paclii.org/fj/cases/FJLawRp/1999/11.html> .) Unsurprisingly, common law jurisdictions in England, Wales, Australia and New Zealand, have moved (like Fiji) from self-regulation to establishing an independent tribunal, in one form or another, when considering allegations of professional misconduct.

[3] It is my hope that by the Commission allocating the time and resources necessary to hear such matters, while ‘acting fairly’ as required by section 114 of the Legal Practitioners Act 2009, it will instil confidence in both the public and profession as to importance of the work of the Commission in protecting the public whilst also upholding the standards required to be a member of the Bar of Fiji.

[4] One other matter that I need to mention, before I commence, is to clarify my capitalising of the noun ‘Will’ when referring to (as defined by the Concise Australian Legal Dictionary, 5^thedn, LexisNexis, Chatswood, 2015, p.666) ‘a written declaration providing for disposition of property to take effect on the maker’s death’. That publication has defined the word ‘will’ as non-capitalised. Similarly, the Concise Oxford Dictionary of Current English (J.B. Sykes (ed.), 6^th edn, 9th impression, Oxford University Press, Oxford, 1979, at p.1334) has also defined the word ‘will’ as non-capitalised. I have decided, however, that due to the length of this judgment and so as to avoid any confusion, particularly for the non-legal reader, to capitalise the noun ‘will’ when referring to a testamentary disposition.

1. Introduction

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”

Charles Dickens, Bleak House, Chapter 1, ‘In Chancery’, first published as 20 monthly instalments from March 1852, then as a complete novel by Bradbury and Evans, London, 1853; reprinted as an e-book by Project Gutenberg, 1 August 2007 [eBook #1023], updated 21 February 2012, <http://www.gutenberg.org/files/1023/1023-h/1023-h.htm#c37> .)

[5] Chancery Lane, London, sometime in the first half of the nineteenth century, ‘implacable November weather’ with ‘fog everywhere’ and the fictional suit of Jarndyce and Jarndyce drones on in the Court of Chancery. Dickens claimed, in the ‘Preface’ to Bleak House, ‘that everything set forth in these pages concerning the Court of Chancery is substantially true, and within the truth’, noting:

‘At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun. There is another well-known suit in Chancery, not yet decided, which was commenced before the close of the last century and in which more than double the amount of seventy thousand pounds has been

swallowed up in costs. If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages ...’

[6] Fast-forward 165 years to Victoria Parade, Suva, September 2018 on a tropical spring day in the South Pacific (beautiful and dry in the morning with the hint of a thunderstorm for the afternoon), and four offences in relation to a lawyer’s alleged conduct arising from a dispute over an estate are listed for judgment in the Independent Legal Services Commission. Allegations have also surfaced during the hearing as to the conduct of some other lawyers. While the century, place and weather may have changed and the angst and alleged costs incurred might not be on the same scale as took place in Dickens’ fictional novel (the latter involving generations of lawyers until the whole of the estate had ‘been absorbed in costs’ and thus the suit lapsed), aspects of the present matter, arguably, also do not reflect well upon the profession. In short, following the death of the testator in a motor vehicle accident, much of his estate was then, allegedly, dissipated in a protracted dispute, initially surrounding a grant of letters of administration when a Will could not be found and then, when a Will was found, challenging its validity. What role the Respondent and his firm played in this sad state of affairs, if any, is now for me to determine. A bitter family dispute, that perhaps could have been settled if a spirit of goodwill had prevailed, has not assisted matters (something to which I will return near the end of my judgment). Finally, the case is another warning to legal practitioners and their staff for whom they have responsibility, of the need to maintain file notes and, in particular, to confirm all contentious matters in writing to clients as well as to fellow practitioners.

[7] In summary, this judgment is concerned with four major issues:

(1) What is the responsibility of a legal practitioner to a beneficiary of a Will that has been drafted by the practitioner’s law firm but where, allegedly on the testator’s instructions, a copy is not made nor is the sole original left in the safe custody of the firm’s Wills Register? In such a scenario, what is the responsibility of a legal practitioner to keep a record of the Will?

(2) If, following the testator’s death, the Will cannot be found, is it a breach of duty by a legal practitioner towards the beneficiary of the missing Will and/or professional misconduct to then act solely on behalf of the widow in taking out a grant of Letters of Administration knowing that under the lost Will the testator left his estate not to his widow but to his mother as the sole beneficiary?

(3) Further, having initially advised both the widow and the intended beneficiary under the lost Will on the making of a joint application for a grant of Letters of Administration, is it professional misconduct (once the intended beneficiary under the lost Will has allegedly withdrawn the joint instructions) for the lawyer to later act only for the widow in making an application for a sole grant of Letters of Administration which, although in accordance with the priority set out in the applicable legislation, is arguably to the beneficiary’s detriment?

(4) In taking out a grant of Letters of Administration knowing that under the lost Will the testator left his estate not to his widow but to his mother as the sole beneficiary, what then is the responsibility of the legal practitioner for any costs incurred when subsequently the Will is found and proceedings take place in the High Court to have the grant of Letters of Administration revoked and the Will declared valid?

[8] The judgment also raises two important issues of evidence and procedure:

(1) What inferences, if any, should be drawn from the absence of a witness one would have expected to be called to give evidence on an issue?

(2) What is the burden of proof to be applied in disciplinary proceedings where there are allegations as to what a reasonably competent practitioner would have done?

[9] Due to the nature of the matter, this will be a lengthy judgment. It has involved two complainants (a mother-in-law and a widow who were previously opposed to each other in two sets of proceedings in the High Court), each making separate allegations against the Respondent. It has required me to make findings on a number of separate issues across the four counts. Fortunately, the preliminary analysis that I have had to undertake before embarking on Counts 1 and 2, followed by the further lengthy analysis and findings in relation to those counts, has assisted me when considering Count 3 without the need to consider all the evidence anew. The findings that I have made in relation to Counts 1, 2 and 3, has then allowed me, together with submissions and a consideration of the relevant evidence from the transcript, to make relatively succinct findings in relation to Count 4.

2. The Counts

(1) The four counts

[10] The First Respondent faces three counts of professional misconduct and one count of unsatisfactory professional conduct as follows:

‘Count 1 (as amended)

PROFESSIONAL MISCONDUCT: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009

PARTICULARS

SURUJ PRASAD SHARMA, a legal practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” had acted against the interests of Maya Wati Prakash by acting for Pranita Devi, wife of deceased Salen Prakash Maharaj in taking out Letters of Administration for Pranita Devi for the Estate of Salen Prakash Maharaj, when earlier on his employee, Dipka Mala had prepared a Will for Salen Prakash Maharaj dated 22^nd December 2006 under which Maya Wati Prakash, mother of the deceased, Salen Prakash Maharaj was the beneficiary, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.

Count 2

Unsatisfactory Professional Conduct: Contrary to Section 81 of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 22^nd December 2006 and 23rd January 2010 failed to keep proper record of the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by the said law firm, which conduct was contrary to section 81 of the Legal Practitioners Decree 2009 and was an act of unsatisfactory professional conduct.

Count 3

Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 25^th November 2008 and 11^th October 2013 failed to exercise due care and diligence in locating the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by Patel Sharma Lawyers, thereafter, proceeded on instructions of one Pranita Devi and obtained grant of Letters of Administration in the Estate of Salen Prakash, to the said Pranita Devi to the detriment of Maya Wati Prakash who was the sole beneficiary pursuant to the Will of Salen Prakash Maharaj, as the said Maya Wati Prakash was subjected to unnecessary cost for initiating High Court Action No. HPP 3 of 2010, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.’

Count 4

Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 25^th November 2008 and 11^th October 2013 failed to exercise due care and diligence in locating the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by Patel Sharma Lawyers, thereafter, proceeded on instructions of Pranita Devi and obtained grant of Letters of Administration in the Estate of Salen Prakash to the said Pranita Devi, which grant subsequently was revoked by the Suva High Court and as a result caused the said Pranita Devi unnecessary costs, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.’

(2) The hearing

[11] Due to the need to take evidence from witnesses for the Applicant who were residing overseas and, also, to accommodate overseas absences of the Respondent’s Counsel and the Respondent legal practitioner, the taking of evidence in this matter began in the December 2016 Sittings, continued for a week in the June 2017 Sittings and then for a further week in the September 2017 Sittings. After 12 hearing days, with evidence taken from numerous witnesses and some 86 exhibits tendered, Counsel for the parties requested time to file their respective written submissions and a timetable was so ordered. This was followed by a mention on 5^th February 2018 where Counsel for the Applicant sought (and was given) 14 days to file any submissions in reply.

[12] Once I had the opportunity to consider the written submissions of both parties, I found that I needed to clarify the position of each Counsel in relation to the four counts as well as some of the exhibits. The matter was then relisted in the Call Over of the April 2018 Sittings, wherein I provided Counsel with a general outline of my concerns, followed by a day’s hearing on 25^th April 2018, at the end of which Leading Counsel for the Respondent tendered what he termed ‘a written synopsis’ clarifying their position. Counsel for the Applicant was then given time to file a short synopsis in ‘response’ and the parties were advised that judgment would be on notice.

(3) A new second conflict being alleged?

[13] After reading the short synopsis filed by Counsel for the Applicant Chief Registrar on 4^th May 2018 in response to the ‘written synopsis’ of Counsel for the Respondent, it appeared that a new second conflict of interest was now being alleged, as set out at paras [2] and [5] of those submissions as follows: