IN RE RULE AGAINST AN ATTORNEY-AT-LAW

IN RE RULE AGAINST AN ATTORNEY-AT-LAW

SUPREME COURT
SC RULE 1/2010
SHIRANEE TILAKAWARDANE, J.
IMAM, J.
DEP. P.C.J.

Rule against an attorney-at-law - Failure to act in accordance with the provisions of the Notaries Ordinance 1 of 1907. - Section 31 Deceit - Malpractice - Judicature Act 2 of 1978 Section 42 [2] - SC Rule of 1988- 60-61. 79 [5]

Rule was issued on the respondent attorney-at-law on the allegation of professional misconduct involving elements of deceit and moral turpitude. The respondent attorney-at-law was charged for misleading the complainant and deceiving him regarding the title to the land and for executing two fraudulent deeds.

Held

(1) From the evidence adduced it is clear that the respondent attorney-at-law has failed to observe the Rules to be observed by Notaries - Section 31, Notaries Ordinance. The respondent had failed to observe the provisions in Section 17[a], Section 17 [b], Section 18 - Section 20, Section 26 [a], Section 26 [b], Section 31.

Per Shiranee Tilakawardane, J.

"The respondent after having attested fraudulent deeds and there­ by causing grave financial loss to the complainant, has deliberately failed to honour even the settlement he agreed to before the BASL. Therefore it is abundantly clear that the respondent has made a promise without intending to honour it which also tantamounts to dishonorable conduct unworthy of the attorney-at-law".

Cases referred to:-

(1) Daniel Vs. Chandradeva 1994 2 Sri LR 1

(2) In Re Arthenayake Attorney-at-Law 1987 1 Sri LR 314

(3) In re Srilal Herath 1987 1 Sri LR 57

Ms. Viveka Siriwardane de Silva SSC for Attorney General.

Rohan Sahabandu PC for B.A.S.L.

Complainant appears in person.

Respondent appears in person.

Cur.adv. vult.

February 20, 2013.

Rule dated 04.11.2010 was issued under the hand of the Registrar of the Supreme Court on the Respondent Attorney­ at-law (hereinafter referred to as the Respondent) to show cause why he should not be suspended from practice or be removed from the office of Attorney-at-Law of the Supreme Court in terms of Section 42(2) of the Judicature Act No. 2 of 1978 for deceit and/ or malpractice and thereby conducting himself in a manner unworthy of an Attorney -at-Law.

This Rule is a sequel to two preliminary inquiries conducted by two panels of the Bar Association of Sri Lanka (BASL) against the Respondent. At the conclusion of the said inquiries, the respective panels had unanimously recommended that the Respondent be reported to the Supreme Court for necessary action.

On 17.12.2010, the Rule was read out to the Respondent in open court to which he pleaded not guilty and moved for time to show cause. The matter was thereafter fixed for inquiry.

The Attorney General appeared in support of the Rule. The Bar Association was represented by Mr. Rohan Sahabandu, PC and the Respondent appeared in person.

In Daniel Vs. Chandradeva(1), which explicitly considered the standard of proof in inquiries relating to a Rule under Section 42(2) of the Judicature Act, it was held as follows:

"Where the conduct of an attorney is in question in disciplinary proceedings, it requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that a just and correct decision has been reached. The importance and gravity of asking an attorney to show cause makes it impossible for the Court to be satisfied of the truth of an allegation with­ out the exercise of caution and unless the proofs survive a careful scrutiny. Proof beyond reasonable doubt is not necessary, but something more than a balancing of the scales is necessary to enable the Court to have the desired feeling of comfortable satisfaction. "A very high standard of proof is required where there are allegations involving a suggestion of criminality, deceit or mo

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