Appeal court stands firm on Foote

Disbarred attorney-at-law Don Foote has lost his bid to overturn a 2017 decision of the General Legal Council (GLC), which found him guilty of professional misconduct for his mishandling of a court-ordered property sale.

In a strongly worded judgment delivered yesterday, the court upheld both the 2017 ruling of the GLC’s Disciplinary Committee that found Foote guilty of professional misconduct, as well as the sanctions imposed in 2018, including a $1 million fine and costs of $100,000 to the complainant and the GLC.

The panel of judges, comprising justices Vivene Harris, Jennifer Straw and Georgiana Fraser, concluded that the attorney’s handling of a contentious property sale not only violated professional canons but also discredited the legal profession.

“The committee was not plainly wrong in finding that Mr Foote, in the performance of his duties, acted with inexcusable or deplorable negligence or neglect,” the judgment stated. “His conduct demonstrated a blatant disregard for the integrity of the legal profession.”

They further agreed that the evidence overwhelmingly supports the committee’s finding that Foote did not act with the honour and propriety expected of a reasonably competent attorney having joint carriage of sale, in the light of the circumstances that generated the complaint.

Sale of property

At the centre of the complaint was the sale of a jointly owned property in Smithville, Westmoreland, involving Amy Robinson and her former husband Dorrel Saunders, whose marriage had ended in divorce. By Supreme Court order in 2010, the couple’s joint tenancy was severed, and the court ordered that the property be sold with the net proceeds equally divided.

Attorney Vonique Mason represented Robinson, while Foote represented Saunders. Under the draft agreement prepared by Foote, both vendors were listed as joint sellers, and both attorneys were noted as having joint carriage of the sale. The intended purchaser was Henry Moo Young, but he never signed the agreement nor paid the full deposit required under the contract.

Despite the absence of a binding contract, Foote allowed Moo Young to take possession of the property and begin extensive structural renovations. These steps were taken without the consent or even knowledge of Robinson or her attorney, in breach of the joint responsibility arrangement.

When Mason learned of these developments in late 2010, she wrote several letters to Foote requesting the signed agreement, updates on the transaction, and an explanation for the purchaser’s early possession. But Foote failed to respond to multiple letters and only replied on March 1, 2011, weeks after the purchaser had taken control of the premises.

In its published judgment, the Court of Appeal strongly criticised Foote’s conduct. The court noted that he had placed the purchaser in possession before the sale was concluded, without ensuring that the purchaser had signed the agreement or paid the full deposit, and without consulting the co-vendor’s attorney. This, the court found, constituted “grave concerns about his competence” and “gross discourtesy” to fellow counsel.

“His conduct demonstrated a blatant disregard for the integrity of the legal profession,” the panel stated. “It was open to the committee to find that the overall conduct of Mr Foote raised grave concerns about his competence.”

Further, the appellate court agreed that Foote’s actions breached Canon IV(s), which imposes a duty on attorneys to act with competence and diligence, and Canon I(b), which prohibits conduct that tends to discredit the profession.

During the appeal, Foote – represented by King’s Counsel Douglas Leys and Sandra Phillips – argued that he owed no legal duty to the complainant, since she was not his client. He submitted that Canon IV(s) governs only the attorney-client relationship, and because he represented Saunders alone, he could not be in breach.

“There was no executed agreement and no attorney-client relationship with Ms Robinson,” argued Leys. “His actions were based on instructions from his client, and it was not incumbent upon him to respond to the co-vendor’s attorney.”

Professional responsibility

He further claimed that at worst, Foote’s conduct was “impolite” or “unwise”, but not unethical.

However, the appellate court rejected that position, finding that joint carriage of sale created a duty to keep the other side informed and to conduct the transaction collaboratively and professionally. The absence of a signed agreement, the court ruled, did not excuse Foote’s failure to uphold those standards.

“This was not merely a failure of communication – it was a failure of professional responsibility,” the court stated.

“There is no need to repeat the details of what I regard as the egregious manner in which Mr Foote approached and executed his obligations under the proposed agreement, not only to the complainant, but also to his client, I also endorse the committee’s finding that Mr Foote’s poor communication with and dishonest representations to Ms Mason displayed a level of disregard for co-counsel that was appalling and amounted to gross discourtesy,” Harris said.

Meanwhile, King’s Counsel Sandra Minott-Phillips, who represented the GLC along with Litrow Hickson and Jamaiq Charles, argued that anyone – not just clients – has the legal right to lodge complaints under the Legal Profession Act. She submitted that the committee correctly applied the “beyond a reasonable doubt” standard in finding Foote guilty of professional misconduct.

She further stressed that attorneys owe a duty to uphold professional standards even without a formal attorney-client relationship, while maintaining that the committee was justified in its ruling.

Additionally, Minott Phillips said that, given the committee’s extensive findings, the sanction imposed by the committee was not manifestly excessive and was rather quite lenient.

tanesha.mundle@gleanerjm.com