The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Grand Bahama Port Authority (GBPA) fired its former general counsel after CIBC FirstCaribbean obtained a Supreme Court judgment against him for “misappropriating” $82,141.

Tyrone Fitzgerald’s early 2013 dismissal, and the reasons behind it, were revealed for the first time in a February 5, 2014, ruling by the Bahamas Bar Association’s disciplinary tribunal, which ruled that he be disbarred.

The tribunal, chaired by Justice Rhonda Bain, found that Mr Fitzgerald was “guilty of misappropriation” of his bank client’s money, which was given to him to pay for the Stamping/recording of nine mortgages.

This, the tribunal ruled, had left CIBC FirstCaribbean’s mortgage loans perilously exposed, as they had no security for them - something that could shove the bank to the back of the creditors queue and cost it title to the underlying real estate.

Recalling the background to the case, the tribunal said CIBC FirstCaribbean International Bank (Bahamas) first filed a complaint against Mr Fitzgerald with the Bar on February 12, 2012.

“FirstCaribbean alleged that [Mr Fitzgerald] was retained to act for the bank in the preparation of nine mortgage during a period which commenced in 2005,” the ruling said.

“[Mr Fitzgerald] prepared the mortgages but did not Stamp or record the documents even though he was instructed to do so, and received the necessary funds from CIBC FirstCaribbean to have the documents Stamped and recorded.”

The BISX-listed bank made “numerous demands” for Mr Fitzgerald to deliver the original mortgages and title documents, but “to no avail”.

This led to CIBC FirstCaribbean filing its complaint with the Bar Association’s ethics committee, which was then forwarded to the Tribunal.

Edward Turner, Mr Fitzgerald’s attorney, asked the Tribunal “to take into consideration the fact that CIBC FirstCaribbean had filed a civil action against the respondent and had obtained a judgment against him for the stated sum, as a result of which [Mr Fitzgerald] was fired from his position as general counsel at the Grand Bahama Port Authority”.

At the December 4, 2013, hearing before the Tribunal, the bank said Mr Fitzgerald had forwarded all the necessary title documents to it, but still owed $82,141 for the Stamp Duty and recording fees, plus other costs.

Mr Turner, on Mr Fitzgerald’s behalf, admitted that this sum was still owed to CIBC FirstCaribbean. He asked that his client be given the opportunity to pay this via an instalment plan - $40,000 paid by January 13, 2014, with the remaining $42,141 cleared by March 31 this year.

CIBC FirstCaribbean accepted this offer, but at a January 22, 2014, hearing Mr Fitzgerald’s attorney said he had not paid the first instalment and asked for a two week extension to pay this.

The Tribunal refused this, and said repayment of the $82,141 now would only lessen the punishment for Mr Fitzgerald.

“The Tribunal finds that [Mr Fitzgerald] is guilty of misappropriation of his clients’ money. This amounts to much more than conduct unbecoming a counsel and attorney pursuant to Section 29 of the Legal Profession Act,” it ruled.

“Counsel has an obligation to his clients in the circumstance of the subject instructions to ensure that all security documents are Stamped and recorded in a timely manner.

“[Mr Fitzgerald] did not ensure Stamping and recording of the complainant’s documents at all. [He] should be aware of the danger in failing to record conveyances and mortgage documents. Failure to do so could lead to loss of priority of charge and loss of title altogether.”

Failing to record and Stamp the mortgages in a timely manner was also a breach of the Bahamas Bar Association’s Code of Professional Conduct.

“The Tribunal finds that even though [Mr Fitzgerald] admitted the charges and expressed a desire to repay the money to CIBC FirstCaribbean for Stamping and recording the subject documents, [he] is in severe breach of his duty as counsel and attorney, and has descended to the level of dishonesty in the discharge of his duty to CIBC FirstCaribbean,” the Tribunal ruled.

“The Tribunal also takes note that this is the second complaint in six months brought by [CIBC FirstCaribbean] against [Mr Fitzgerald] with respect to the delivery of title documents.”

As a result, given CIBC FirstCaribbean’s Supreme Court judgment and Mr Fitzgerald’s admission of guilt, the Tribunal ruled that he be disbarred as an attorney. He was ordered to pay $1,000 costs.

Tribune Business made repeated efforts to contact Mr Fitzgerald for comment yesterday, but there was no reply to an e-mail sent to his personal address.