GLC ruling reversed
Appeals Court overturns decision that favoured attorney accused of misconduct
A DECISION by a disciplinary panel of the General Legal Council (GLC) to exonerate an attorney accused of misconduct in the sale of a property has been overturned by Jamaica’s second-highest court.
Instead, the Court of Appeal, in a decision on Monday, found that the attorney, Fay Chang Rhule, was in breach of one of the canons governing the legal profession in Jamaica and is therefore “guilty of professional misconduct”.
The case was also sent back to the disciplinary panel for a hearing to determine the sanction that should be imposed on Chang Rhule.
The GLC regulates the legal profession in Jamaica.
Chang Rhule was reported to the GLC by Angella Smith, who claimed that the attorney sold the house she jointly owned with her husband without her knowledge and consent, then paid over the proceeds to another woman.
The other woman, identified in court documents as Carolyn Alexander, was involved in an “intimate relationship” with Smith’s husband, Denton McKenzie, according to a transcript of the Court of Appeal judgment.
Smith told The Gleaner on Monday that she was finally getting “justice” after a nine-year wait.
“They did me wrong. It was just unfair what they did to me and I wouldn’t want anyone to go through what I’ve been through,” she said.
The transcript said Alexander retained Chang Rhule to conduct the sale of the house, providing a power of attorney “signed” on March 6, 2011 by McKenzie as the “donor” and giving her authorisation to act as the vendor.
A perusal of the title at the National Land Agency revealed that Smith was a co-owner of the property and the attorney was told, when she enquired, that the owners were incarcerated in Canada, it said.
Alexander then provided the attorney with a second “power of attorney”, dated November 21, 2011, indicating that she had Smith’s approval for the sale of the property.
The court noted that there was no evidence to indicate how long after Smith’s stake in the property was discovered before the second ‘power of attorney’ was presented to the attorney.
The sale was completed in 2012 and the cash turned over to Alexander.
Smith, in her complaint to the GLC, accused Chang Rhule of misconduct, insisting that she did not sign the power of attorney bearing her name and that she never consented to the sale of the property.
Further, she claimed in a sworn affidavit dated June 12, 2015 that the signature and handwriting on the power of attorney were not hers.
Smith attempted to call two witnesses to give expert evidence on handwriting, but the disciplinary panel, after a hearing, determined that “neither witness was qualified to be an expert witness”.
McKenzie also gave a sworn affidavit dated April 30, 2015 in which he denied signing a power of attorney giving authorisation for the sale of the property.
In fact, he confirmed that in 2009 he was given a five-year prison sentence overseas, which he was still serving when he gave his affidavit.
Chang Rhule, in her sworn affidavit dated August 31, 2015, argued that both powers of attorney were signed and sealed by a duly commissioned notary public and, as a result, she acted in accordance with Alexander’s instructions.
After hearing all the legal arguments, the disciplinary panel concluded that by reviewing the powers of attorney, Chang Rhule had “satisfied herself that in form and substance the statutory requirements of the laws of Jamaica were complied with”.
“There was not on the face of the document or the circumstance that arose, sufficient risk factors that would cause her to have a duty to enquire further into the authenticity of the power,” panel said, according to the transcript.
“The attorney therefore, would not have been guilty of inexcusable or deplorable negligence in acting on the power nor would her action be considered behaviour which did not maintain the honour and dignity of the profession of [sic] discredit the profession of which she is a member.”
Not satisfied with the panel’s ruling, Smith, through her attorney Lemar Neale, of the law firm NEA|LEX, took her case to the Court of Appeal.
Neale argued before the Court of Appeal that there was sufficient “red flags” in Chang Rhule’s interaction with Alexander to impose a duty on her to authenticate the power of attorney that was in his client’s name.
He argued, too, that the circumstances surrounding the production of the power of attorney were made “more suspicious” in light of the fact that Chang Rhule was informed that both owners of the property were incarcerated.
Among the “curious features” of the powers of attorney that should have raised a red flag, Neale argued, was the fact the addresses for Smith and McKenzie were not listed as a correctional facility; they had the same addresses for McKenzie and Alexander; and they were witnessed by the same person though they were executed months apart.
The Court of Appeal, in a unanimous judgment, said the GLC’s disciplinary panel was “plainly wrong” in concluding that the circumstances did not raise red flags that were sufficient to require Chang Rhule to conduct further checks to verify the authenticity of the powers of attorney.
“There were sufficient red flags that, if they had been considered by the committee, would have concluded that the second respondent [Chang Rhule] should have made checks in respect of the circumstances of the execution of the appellant’s [Smith] power of attorney,” the court said.
The court said this would have been necessary especially given Alexander’s assertion that Smith was incarcerated.
It said the inescapable conclusion would have been that, in failing to make further checks and acting on the Smith’s purported power of attorney, Chang Rhule breached one of the canons of the legal profession.