As our friend Amit at Push! Pull! blog would say… “IANAL” – I am not a lawyer – so maybe there’s a lawyer out there that can help us figure out if Ezra Alleyne repaid the money to a client.
Apparently, Mr. Alleyne had some sort of trouble finding the money to give it back to the client – even though the money was supposed to be safe and sound in his (ahem) “Trust” account.
According to the online law library, at one point Mr. Alleyne gave his undertaking to repay the money but then failed to do so… for which the Disciplinary Committee of the Bar Association found him guilty of misconduct and recommended that he repay the money and that he be suspended from practicing as a lawyer for 3 years.
This was apparently overturned on some technical grounds, but we can’t find any indication as to whether Mr. Alleyne ever returned the money that was not his.
The case can be found online here.
We’ll also print the entire case for the convenience of our readers – and, you know – just in case it gets lost with all the new attention…
ALLEYNE, RE EZRA
[COURT OF APPEAL – CIVIL APPEAL
(Williams, P., Husbands and Smith, JJ.A). February 11, 1994]
(1994) 30 Barb. L.R. 51
Legal profession – Discipline of attorney-at-law – Purchase price and legal fees for purchase ofland paid over to attorney – Allegation that attorney delayed conveyance – Matter reported to theDisciplinary Committee of the Bar Association – Finding of misconduct by Committee -Allegation that breaches of procedure were made at Committee’s hearing – Whether hearing anullity.
Natural justice – Hearing by Disciplinary Committee of Bar Association – Comments madeduring formal hearing pursuant to the Rules contained in the Fifth Schedule to the LegalProfession Act, Cap. 270A which could reasonably have led to the conclusion that a decision hadalready been made on the very matter about which the hearing was being held – Proceedings anullity.
Facts: On January 28, 1991 the complainant who resides in London, England paid the sum of$33,368.40 and legal fees of $1,300 to Mr. Alleyne, an attorney-at-law for the sole purpose ofpurchasing land for the complainant. On May 28, 1992, the complainant applied to theDisciplinary Committee of the Bar Association to require Mr. Alleyne to answer allegations thatup to that date, the complainant had not signed the conveyance. On June 10, 1992, the Committeenotified Mr. Alleyne of the allegation. On June 23, 1992 he replied, contending that the complaintwas unjustified and supported his claim by enclosing a copy of a letter dated June 10, 1992 whichhe had received from the vendor’s attorney-at-law. The correspondence between Mr. Alleyne andthe attorney-at-law showed that at the date of the complaint Mr. Alleyne had not received theconveyance and a vital downpayment which would have facilitated the completion of thepurchaser’s title had not been sent to him.
At a meeting on July 8, 1993 Mr. Alleyne gave his professional undertaking to repay the money.The matter was adjourned until July 29, 1993 and Mr. Alleyne did not appear. On September 9,1993 the Committee commenced proceedings and Mr. Alleyne requested an adjournment to settlethe matter. He was reminded of his  undertaking given on July 8, 1993. The Committeesubsequently found him guilty of misconduct and recommended that he repay the outstandingsums and be suspended from practice for 3 years. The Committee’s report with itsrecommendations was forwarded to the Chief Justice pursuant to section 21(1) of the LegalProfession Act, Cap. 370A.
Held: The exercise of the powers of the Court of Appeal to deal with matters of discipline on therecommendation of the Disciplinary Committee of the Bar Association would necessarily have asevere impact on the career and livelihood of an attorney-at-law and a case of professionalmisconduct can only be properly established if the fundamental principles of justice are observed.It is clear that at the time of the complaint, Mr. Alleyne was not at fault since he had not receivedthe conveyance from the vendor’s attorney-at-law.
Attention later centred on the completion of the transaction by Mr. Alleyne’s payment of themoney he had received. It was essential that he should have known what the charges were about,and it is clear from the record that he was aware that the focus of the investigation had shifted andthe charges against him related to his inability to pay over the money and the breach of theprofessional undertaking which he had given. During the formal hearing pursuant to the Rulescontained in the Fifth Schedule to the Legal Profession Act, things were said that wouldreasonably have led to the conclusion that a decision had already been made on the very matterthat the hearing was about. However strong a case there be, when a hearing is held pursuant tothe Rules, it must be held in accordance with the recognised procedure. In the circumstances, thecourt has no alternative but to treat the hearing as a nullity.
Statute and statutory instrument referred to:
Land Tax Act, Cap. 78A, ss. 40 and 41.
Legal Profession Act, Cap. 370A, ss. 18-31 and Fifth Schedule containing The Legal ProfessionRules, Rules 3-5,12, 14 and 16.
Legal Profession Code of Ethics, Rules 70, 74, 86(1), 87 and 90(1).
Mr. D.A. Simmons, Q.C. in association with Mr. Ralph Thorne for Mr. E. Alleyne.
Mr. W.O. Davis, Q.C. in association with Miss D. Brathwaite appears as amicus curiae.
Mrs. B. Walrond, President of the Bar Association as amicus curiae.
WILLIAMS, P.: Sections 18 to 21 of Part V of the Legal Profession Act, Cap. 370A makeprovision with respect to the discipline of attorneys-at-law. Section 19(1) enables a client of anattorney-at-law who feels aggrieved by what he regards as an act of, or default amounting toprofessional misconduct to apply to the Disciplinary Committee established by section 18 to require the attorney-at-law to answer allegations contained in an affidavit. Any such application isto be made to and heard by the Committee in accordance with the prescribed rules (section 19(3)).
These Rules are at present contained in the Fifth Schedule to the Act. Rules 3, 4, 5, 12, 14 and 16provide as follows:
“3. An application to the Committee to require an attorney-at-law to answer allegationscontained in an affidavit shall be in writing under the hand of the applicant in Form 1 of theAppendix and shall be sent to the secretary together with an affidavit by the applicant inForm 2 of the Appendix stating the matters of fact on which he relies in support of hisapplication.
4. Before fixing a day for the hearing, the Committee may require the applicant to supplysuch further information and documents relating to the allegations as it thinks fit, and in anycase where in the opinion of the Committee no prima facie case is shown, the Committeemay, without requiring the attorney-at-law to answer the allegations, dismiss the applicationand notify the applicant and the attorney-at-law of the dismissal.
5. In any case in which, in the opinion of the Committee, a prima facie case is shown, theCommittee shall fix a day of hearing, and the secretary shall serve notice thereof on theapplicant and on the attorney-at-law a copy of the application and affidavit, and the noticeshall not be less than a twenty-one days’ notice.
12. Notes of proceedings shall be taken by the secretary or other person appointed by theCommittee, and any party who appeared at the proceedings shall be entitled to inspect theoriginal or a copy thereof, and every person entitled to be heard at the hearing upon theconsideration of the Report by the court, shall be entitled to a copy of such notes onpayment of the charges (if any) prescribed by rules of court.
14. (1) Attorneys-at-law and witnesses shall have the same privileges and immunities inrelation to hearings on application under the Act as in any court of law.
(2) A party to an application is entitled to be represented by an attorney-at-law.
16. If after hearing an application, the Committee is satisfied that no case of professionalmisconduct has been made out, it may dismiss the application.”
On May 28, 1992 Mr. Whitson Bynoe of 14 Craven Court, Greenhill Park, London, England, aclient of Mr. Ezra Alleyne, an attorney-at-law, applied to the Committee pursuant to section 19 ofthe Act to require Mr. Alleyne to answer allegations made in an accompanying affidavit that onJanuary 28, 1991 he received the sum of $33,368.40 and his legal fee of $1,300.00 to purchaseland for him and that he, Mr. Bynoe, had not up to that date signed the conveyance. Thecomplaint was that Mr. Alleyne was acting in an unprofessional manner which, by delaying theconveyance while the cost of building material was rising, was increasing the cost of building onthe land.
By written notice dated June 10, 1992, the Committee’s secretary notified Mr. Alleyne of Mr.Bynoe’s application, copied Mr. Bynoe’s affidavit to him and told him that he might be required toanswer the allegations contained in the affidavit. On the 23rd of the same month Mr. Alleynereplied to the secretary stating that Mr. Bynoe’s complaint was not justified and supported hiscontention by referring to a letter dated June 9, 1992 which he had received from Mr. KeithMayers (the vendor’s attorney-at-law). Mr. Alleyne’s letter continued:
“This document will show that it was as recent as the 9th June that Mr. Mayers addressed aletter to me enclosing the engrossed conveyance and other relevant documents, which Imust now record to finalize this matter.
I draw attention to the fact that:
(a) Mr. Mayers’ letter is in response to my letter of 12th March, so that for the past three (3)months the matter has been receiving the attention of the vendor’s attorney and I have hadto wait patiently to receive these documents.
(b) It is at that time that I had alerted Mr. Bynoe that the documents would have been sentto him within a short time after the 12th March, 1992 but at that time I assumed, incorrectlyas it turned out, that the documents would have been returned to me shortly thereafter.
Land Tax Certificate
Indeed, even now the Land Tax Certificate, a vital and integral part of the title, has not beendelivered and I must still await delivery of this document before the matter can be closed….Now Mr. Whitson Bynoe was in the Island earlier this year and I explained the position tohim. He remarked then, that nobody (I assumed he was referring to his daughter and to me)had told him what was going on. Since speaking to him last in early March, the matter hasbeen “out of my hands” and was being dealt with by Mr. Mayers.
I believe that Mr. Bynoe would have understood the position if he knew all the facts. Nowthat all the facts are in the open and before the Committee, I do feel that the complaint hasbeen answered, and that it was submitted only because the client was not apprised of thetotal factual situation.”
In the above letter, Mr. Alleyne referred to his letter of March 12. That letter was in
response to an earlier letter from Mr. Mayers dated February 6 to which Mr. Mayers had attacheda draft conveyance for Mr. Alleyne’s approval. Mr. Alleyne had returned the draft with his March12 letter stating that the draft was duly approved by him on behalf of the purchaser and requestingthe executed document as soon as possible so that the matter could be completed expeditiously.
A copy of Mr. Mayers’ letter of June 9 accompanied Mr. Alleyne’s letter to the Committee’ssecretary. It began:
“Re 1021 Kingsland Heights, Christ Church
I enclose herewith the following document to be held by you in escrow pending payment ofthe balance of purchase money as set out hereunder:
1. Undated conveyance Land Development and Building Ltd. to Whitson Bynoe.
2. Notice of Change of Ownership form in triplicate.
3. C.I.R. form in duplicate.
4. Copy of valid land tax certificate.
5. Original plan #1021 (435 m2) at Kingsland Heights, Christ Church certified 9001/17 byH.H.A. Dottin, Land Surveyor.
6. Notice of Assessment for development duty.
I look forward to receiving your cheque for the sum of $19,229.15 made up as follows…”
The letter then set out the figures showing how the sum was calculated and carried a postscriptafter Mr. Mayers’ signature stating that “4 mentioned above will be forwarded shortly” – in otherwords, that the copy of the valid land tax certificate did not accompany the letter and would besent later.
This brings the court to the first of the difficult questions that confronts it. The correspondencebetween Mr. Alleyne and Mr. Mayers shows that, as at the date of Mr. Bynoe’s application andaffidavit, Mr. Mayers had not yet sent the conveyance to Mr. Alleyne so that Mr. Alleyne couldnot, as at that date, have been in default in not having it ready for Mr. Bynoe’s signature.Moreover, a valid land tax certificate not having accompanied Mr. Mayers’ letter of June 9, Mr.Alleyne could not have got the conveyance stamped or recorded by the Registrar as required bysections 40 and 41 of the Land Tax Act, Cap. 78A and therefore the purchaser’s  title couldnot, as of that date, have been made complete.
The question raised is whether in these circumstances the Committee should not have dismissedMr. Bynoe’s application without more ado. It seems to the court that clues to the answer are to befound in the rules of procedure prescribed for the Committee by the Act. Rule 4 provides, interalia, that in any case where in the opinion of the Committee no prima facie case is shown, theCommittee may, without requiring the attorney-at-law to answer the allegations, dismiss theapplication and notify the applicant and the attorney-at-law of the dismissal. Rule 16 provides thatif after hearing an application the Committee is satisfied that no case of professional misconducthas been made out, it may dismiss the application. Therefore, according to the Rules theCommittee is not bound to dismiss an application if it is of the view that no prima facie case isshown or is satisfied that no professional misconduct has been made out. A discretion is given tothe Committee to remain seised of the matter. The reason for this must be to enable theCommittee, where it is appropriate, to be in a position to monitor the progress of an applicant’slegal work without the applicant having made a new application. It would be a hardship on thosemembers of the public who complain of delays in getting their legal work concluded to have tomake new applications if additional delays occur.
The court is of the view that the Committee cannot be held to be in error for its decision not todismiss Mr. Bynoe’s application. Under the rules, it was a matter within its discretion.
On May 11, 1993 Mr. Alleyne was summoned to appear before the Committee on May 27, 1993on which date the matter was adjourned to July 8, 1993. The Report under section 21(1) of theAct sets out what happened on that date in these terms.
“The matter first came on for hearing on the 8th July, 1993 on a complaint made and swornby Mr. Whitson Bynoe, on the 20th May, 1992 before a Notary Public in London. Thecomplainant alleged that he had paid Mr. Alleyne $33,368.40 on 28/1/1991 plus legal fee of$1,300.00 to purchase land for him which had not then been completed and that Mr. Alleynewas in breach of the Code of Ethics for unprofessional misconduct. In reply to the complaintMr. Alleyne by letter of 24th April, 1992 replied to the secretary of the Committee pointingout that certain matters remained to be done by the vendor’s attorney-at-law beforecompletion could take place.
By June 1992 the vendor’s attorney-at-law sent to Mr. Alleyne certain documents to be heldin escrow pending payment of a net balance of purchase money … and being the sum of$19.229.15. However, the matter was not completed.
As the hearing on the said 93-07-08 Mr. Alleyne indicated that he accepted that the moneywas due and owing to the complainant or to his use and that  he was under obligation tocomplete or repay the money. He did not intend to waste the Committee’s time, butrequested a period of three weeks to affect payment. In reply to the Chairman Mr. Alleynestated that he was giving his professional undertaking under the Code of Ethics made underLegal Profession Act. The matter was adjourned until 29th July, 1993.”
By letter dated July 13, 1993 the Committee’s secretary wrote to Mr. Alleyne as follows:
“Re: In the Matter of the Complaint of Whitson Bynoe
This serves to confirm that you have on the 8th July, 1993 given the Disciplinary Committeeyour professional undertaking to pay the balance of purchase money in the sum of$23,545.60 and to have the purchase of Lot 1021 Kingsland Heights, Christ Church,completed by the 29th July, 1993. You have also undertaken to supply the Committee withthe conveyance and other documents which were forwarded to you in escrow on the 9thJune, 1992 by Mr. Keith Mayers, attorney-at-law for Land Development and BuildingLimited, the vendor in this matter.
I would draw to your attention section 86(1) and 90(1) of the Legal Profession Code ofEthics which states inter alia that a breach of such undertaking shall constitute professionalmisconduct which is punishable by any of the penalties which the Disciplinary Committeeand which the Court of Appeal is empowered to impose.”
Mr. Alleyne did not appear on July 29 and the Committee took a decision to hold a formal hearingand to give Mr. Alleyne 21 days notice pursuant to the Rules. This was done.
The formal hearing commenced on September 9. Mr. Alleyne was not present initially and MissBlackman, Mr. Bynoe’s daughter who was representing him, was sworn and began her evidence.Mr. Alleyne arrived and the Committees’ chairman recounted the stage her evidence had reached.She concluded her evidence and the chairman asked Mr. Alleyne if he wanted to say anythingfurther to them. After Mr. Alleyne apologized for being late, the chairman told him that hethought that they were bound to go on with the formal hearing and that he could have therecording secretary repeat the evidence given by Miss Blackman on behalf of her father andproceed from there. Mr. Alleyne asked to be allowed to speak to Miss Blackman. The chairmantold him that if he was not in a position to assure the Committee that the matter can be settled,they would have to proceed. Mr. Alleyne requested an adjournment to settle the matter. TheChairman reminded him of the professional undertaking that he had given on July 8 to have thematter completed by July 29 and to hand over the documents, and told him that it was substantialafter that, that they had not in the interim received from him any formal communication seeking an extension and that he did not see how they could in the circumstances continue to grant anextension. Mr. Alleyne explained that the undertaking had been seriously given and that, had thematter been completed as he had anticipated, he would have turned up at the meeting with amanager’s cheque. As it was he did not think that it was appropriate or proper to remain at thefinancial institution when it was past 2 o’clock and thought he should get to the meeting of theCommittee.
The chairman then said to him:
“This started out as a complaint by Mr. Bynoe under the Act in the normal way. It has goneto a point where by the excessive delay several breaches of the Code of Ethics have nowtaken place. In the first place, his complaint would have been made under Rule 70: `Anattorney-at-law shall not retain money received from his client longer than is absolutelynecessary.’ Then, subsequently, Rule 86 under which you have breached that undertaking -you have breached that undertaking, and lastly, under 87 `In pecuniary matters anattorney-at-law shall be most punctual and diligent … and shall at all times be able to refundmoney he owes others.’ They constitute a breach of an attorney-at-law … any … shallconstitute professional misconduct: `An attorney-at-law who commits such a breach shall beliable…’
Clearly from your own statement this evening even though not under oath, you are anattorney-at-law and before the tribunal, I will accept the statement as being made by amember of the profession to other members of the profession and you are clearly in breach.Now, I don’t see that we can … my colleagues – I don’t think that we can grant anadjournment.”
These words were unfortunate because they indicate findings on the very matters on which theCommittee was conducting a hearing under the Rules. Mr. Alleyne was entitled to be told of thebreaches of the Code of Ethics with which he was being charged but it was not in the nature of ahearing to be told that the breaches had taken place or that he was clearly in breach.
The proceedings continued with Mr. Alleyne seeking the shortest possible adjournment and beingtold that the Committee could not grant an adjournment at that stage and that they would ask himto take the oath and respond to the complaint in the normal way. After a short adjournment, theproceedings continued and Mr. Alleyne was asked if he was prepared to respond to the complaintformally – to take the oath and respond. He then asked if he was entitled to counsel at that stage.After exchanges in which he repeated his request to consult counsel on whether he should orshould not take the oath, he was told that the choice was his. He did not take the oath andresponded in the affirmative to questions (1) whether he acknowledged the correspondence he hadwritten to the Committee admitting that at the time he was acting on behalf of Mr. Bynoe andreceiving the money for him, to complete the matter and (2) whether he acknowledged that hegave the Committee an undertaking on July 8 to complete the matter on July 29 and had not been able to do so. The Committee then adjourned the matter for decision and gave Mr. Alleynepermission to deal in the interim with Miss Blackman on the financial matters.
There were further proceedings on October 14, 22 and 27 which related to a larger extent tosettlement of the outstanding financial matters.
The Committee’s report forwarded to the Chief Justice pursuant to section 21(1) of the Actconcluded as follows:
“The Committee found that on the evidence produced and on the admissions of Mr. Alleynethat the complaint as filed for breach of his professional duty had been substantiated andtherefore Mr. Alleyne was in breach of the Code of Ethics in Rules 70, 74, 86 and 87 asfollows:
Rule 70: Retaining money received for a client longer than is absolutely necessary. Rule 74:Acting in the performance of his duties with inexcusable and undue delay. Rule 86: Breachof undertaking given to the Committee in respect of completion of the matter the subject ofthe complaint. Rule 87: Being unable to refund the money held for his client when requestedby the client.
The Committee consider that the above breaches, all falling within the MandatoryProvisions and Specific Prohibitions under Part VIII of the Code of Ethics, constituteprofessional misconduct under Rule 90(1) of the Code of Ethics and therefore Mr. Alleyneis guilty of professional misconduct as set out in the complaint. The Committee considerthat the breaches merit the severest penalty. In consideration however of the fact that Mr.Alleyne had made efforts to repay the money (although it is his duty to do so) and did forthe most part cooperate fully in the hearing, the Committee by majority decisionrecommend:
(a) that Mr. Alleyne be suspended from practice for a period of three years;
(b) that Mr. Alleyne pays such sum as may be outstanding for interest on the balance of thepurchase money up to the date of payment of the balance of $2,770.40 in terms of theagreement for sale and purchase between Land Development and Building Limited andWhitson Bynoe.
The Committee made no recommendation as to costs by either of the parties.”
The power of the Court of Appeal to deal with these matters are set out in section 22(1) of theAct. The Court may:
(a) dismiss the application;
(b) order the name of the attorney-at-law to be removed from the Roll;
(c) order that the attorney-at-law be suspended from practicing law for a period notexceeding three years;
(d) impose a fine;
(e) reprimand the attorney-at-law, and
(f) make an order as to costs.
The exercise of the powers at (b) and (c) would necessarily have a severe impact on the career andlivelihood of an attorney-at-law and a case of professional misconduct can only be properlyestablished if the fundamental principles of justice are observed.
In this case, the allegations in Mr. Bynoe’s affidavit related to Mr. Alleyne’s failure to have theconveyance for him to sign, at the time when he made the application. It is clear that at that timeMr. Alleyne was not at fault because he had not yet received the conveyance from the vendor’sattorney-at-law. The focus was later centred on the completion of the transaction by the paymentby Mr. Alleyne of the money he had received from Mr. Bynoe. It was essential that Mr. Alleyneshould have known what the charges were about and it is clear from the record that he was awarethat the focus of the investigation had shifted and the charges against him related to the inability topay over the money and the breach of the professional undertaking he had given. What disturbsthe court is that when the Committee decided to have the formal hearing pursuant to the Rules,things were said in the course of the hearing that would reasonable have led to the conclusion thata decision had already been made on the very matter that the hearing was about. Mr. Alleyne’sbeing told that “by the excessive delay several breaches of the Code of Ethics have now takenplace” and that “you are clearly in breach” could only have suggested that the minds of one ormore of the Committee members had already been made up. However strong a case there may be,when a hearing is held pursuant to the Rules it must be held in accordance with the recognisedprocedures.
In the circumstances, this Court has no alternative but to treat the hearing as a nullity. In the lightof its provisions under section 21(1) the Court will dismiss the application and leave any decisionon whether or not further action should be taken on the matter to those authorised by section19(1) of the Act.
The application is dismissed.
HUSBANDS, J.A: I concur and would only add this observation. During the submissions ofcounsel for the Bar Association, amicus curiae, I sought to discover what further action the BarAssociation was likely to take if counsel’s submission found favour with the Court.
In any climate and in the present climate of public opinion it seems to me that the Bar Association,which is granted self regulatory powers by statute, cannot appear to condone or be indifferenttowards any perceived act of professional  misconduct by any one of its members.
In the material before us, it appears that Mr. Alleyne gave to the Disciplinary Committee aprofessional undertaking to raise and repay client’s monies which should have been restingsecurely in client’s account for disbursement on completion of sale. The material also suggests thata breach of this undertaking may have occurred.
In PART VIII of the Legal Profession Code of Ethics, 1988, which contains “MandatoryProvisions and Specific Prohibitions”, Rules 86(1) and 90(1) provide:
“86(1) An attorney-at-law shall not commit a breach of an undertaking given by him to ajudge, a court or other tribunal or an official thereof, whether such undertaking relates to anexpression of intention as to future conduct or is a representation that a particular state offacts exists.”
“90(1) Breach by an attorney-at-law of any Rules contained in this Part shall constituteprofessional misconduct and an attorney-at-law who commits such a breach shall be liable toany of the penalties which the Disciplinary Committee recommends and which the Court ofAppeal is empowered to impose.”
Against this background, I am of the view that the Disciplinary Committee has a duty to itself andin the public interest to examine the material to determine whether grounds exist to support anallegation concerning professional misconduct, such as would merit an application under section19(1) of the Legal Profession Act, Cap. 370A.
SMITH, J.A.: I had the privilege of reading the judgment of the learned President and my brotherJustice of Appeal Husbands and I concur.