The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

DEFENCE attorneys have disagreed with a recent admonition for judges to hold defendants liable for any misconduct exhibited in court by their attorney, with some calling the suggestion “unconstitutional” and an “undue burden” on what would most likely always be a layperson.

The attorneys, most of whom are criminal defence lawyers, told The Tribune that not only is Appellate President Sir Hartman Longley’s admonition unprecedented, it is “impractical” as no client should be expected to shoulder the blame for an attorney who decides to “go on a frolic of their own”.

Conversely, the majority of the attorneys this newspaper interviewed agreed that if faced with a contentious attorney, a judge should be minded to “control his court properly”, and either file an ethics complaint, impose sanctions on the lawyer, or simply advise the accused to get a new attorney.

Wayne Munroe, QC, said: “To say to a layman, ‘your lawyer is acting improperly, you need to rein him in’, if I’m the layman I’d say ‘well judge if you can’t control him how can I control him? He tell me this how he should be doing my case. I’m not a lawyer, I don’t know’.

“It just seems to me like too much pressure to put on a layperson. And to me, if a lawyer acts improperly, it’s for the presiding judge to deal with the matter. If that means discharging the jury, starting afresh, making an ethics complaint against the lawyer to have him disciplined, I could see that.

“But I can’t see… and I read what the Court of Appeal said. As I said, because I work representing laypeople, I appreciate how much pressure that would put on my client.”

In a recent written ruling, Sir Hartman, the President of the Court of Appeal, admonished Supreme Court judges to warn defendants to control the attorneys who represent them, declaring a defendant can be held liable if his or her lawyer is disrespectful to the court.

More specifically, Sir Hartman declared that going forward, any judge concerned about any attorney’s conduct should tell that lawyer’s client to “rein in” their attorney or otherwise be held “responsible for the conduct and be seen as condoning his tactics”.

The lawyer who served as the impetus for Sir Hartman’s admonition is defence attorney Geoffrey Farquharson, who Sir Hartman said exhibited such “gross misconduct” during a recent murder case that it “made it impossible” for his client to have received a fair trial.

According to Sir Hartman, Mr Farquharson was so “rude, disrespectful and antagonistic” towards the judge, jury, Crown witnesses and Crown attorneys in the matter, that the jury was “motivated” to make a complaint to the judge that he was “rude”. Sir Hartman further asserted Mr Farquharson’s actions “created an atmosphere in the court that would have caused the jury to look adversely upon him and his client’s case”.

That forced the appellate court to order the appellant, Christopher Butler, who is accused of killing Rapeson Jules on June 4, 2013, to be retried on that basis alone, despite his new attorney Stanley Rolle filing “numerous” grounds of appeal to attack his client’s verdict.

Of the attorneys canvassed on the issue, three indicated their support for Sir Hartman’s admonition, including Fred Smith, QC, who asserted that once retained, an attorney “speaks for the client and binds the client in generally all respects”.

“And so historically, whatever the agent does for the principle - that is the client - binds the client,” Mr Smith said.

“And it is therefore incumbent on attorneys to always take and act on instructions to make sure that they are making representations to the court based on what the client told them to do. And it is unethical for an attorney to act in breach of his instructions.

“So the behavior of a lawyer in court or even outside of court, in commercial transactions, really does bind the client. And in that way, the principle—the client, can be and often is held responsible by the actions of the attorney. This is nothing new. This is nothing new at all.”

Mr Smith continued: “At the end of the day the lawyer is essentially the client, because he’s the agent, he’s the representative and speaks for the client. So the only time a person who is a party in the case has the right of audience, is when they don’t have an attorney. So the whole idea of having an attorney is that whatever the attorney says, the client is bound by.

“And so I think the president’s decision in the Butler case, from what I read, was simply that because of the behaviour of an attorney in the conduct of a trial, it could unfairly affect the client’s rights, especially in a criminal case. And what the Court of Appeal has said is really nothing new.

“Often, the behaviour of an attorney, or the representations made by the attorney or the undertakings given by the attorney, the consequences have to be borne by the client, the party to the litigation. And it’s really nothing unfair about that. You chose your mouthpiece. That’s why you have a Constitutional right to an attorney of your choice.”

But Mr Munroe disagreed with Mr Smith’s argument, asserting that lawyers still retain a great degree of autonomy in the execution of their services for a client, and that clients are thus not capable of fully controlling an attorney.

“Let’s say it’s Fred, and the judge tells Fred’s client to ‘rein Mr Smith in’, what is the client going to tell Mr Smith?” Mr Munroe argued. “Because presumably, Mr Smith is, in his mind, acting correctly. (Mr Farquharson), I think in his mind, thinks he is acting correctly. So what could the client say to him? He will say ‘look, I’m the lawyer, you’re the client’. It’s like I tell clients, you can’t tell me how to be a lawyer just like I don’t tell my doctor how to be a doctor.

“When you hire me, I am a creature of instructions to the extent that you tell me what it is, I give you advice; I might give you options. You and I aren’t wedded. If you instruct me to do something that I don’t think is right, I won’t do it. If I determine that this is the way to conduct your case on what you tell me, and you tell me you don’t agree, well you know, I might not be prepared to represent you.”

Meanwhile, another prominent defence attorney bluntly described Sir Hartman’s admonition as “hogwash” and also charged that a client cannot be held liable for an attorney’s actions.

“My view is that the president is wrong in what he said and that you cannot hold a client responsible or accountable for the action of his lawyer,” he said. “Imagine you as a layperson, you went to a lawyer for professional advice. You cannot say, other than the fact that you’re a basic human being, what amounts to courtesy. If a lawyer is rude and discourteous to the court and to others in the court, you certainly cannot control the lawyer in that regard.

“So how can you say that he could be accountable for the actions of his lawyer? Everything is wrong about that. Everything is wrong insofar as the whole concept of justice is concerned. Remember, that the client is the one on trial, not the lawyer. So you put an additional burden on this man who’s already standing trial. Just to be on trial alone is an extreme burden.

“Therefore, if a lawyer goes on a frolic, it is for the judge to control his court properly, and there are certain sanctions that he can impose on the lawyer. And I think it is really a wrong utterance to say that in the circumstances should something like that happen of that nature, then the client could be held accountable. Everything is wrong with that.

“Obviously it’s totally impractical and wrong. That’s the best way I can sum it up.”

That senior lawyer also gave his take on the issue of what constitutes “rudeness” or misconduct in court, the issue at the core of Sir Hartman’s and the appellate court’s decision.

“The legal profession is a robust one,” he said. “Tempers fly in court in the process of representing clients. It does not necessarily mean that the lawyer may be rude. Maybe it’s the manner in which he may be putting across his case. Because being rude is a very subjective factor and you cannot say that everything can amount to rudeness.”

Mr Munroe, also addressing the issue, noted that different lawyers have different styles of representation, but said regardless of whatever tactics attorneys employ - and whether they are deemed to be inappropriate - he has “difficulties” seeing how that issue falls on the client.

“…If you talk about tactics, you have some lawyers who are aggressive, and then you have some lawyers like me who are not aggressive at all, in the sense of on the face of it aggressive,” Mr Munroe said. “I don’t know how you put that burden on a client to rein in his lawyer. There’s a saying that he who represents himself has a fool for a client. So if you have an accused person who has an independent counsel, to require him to make judgements on how his counsel should defend his case is unusual.

“I don’t see that myself. It’s difficult for me to grasp. I see what the (Court of Appeal) has said - I don’t myself see practically how it would work, especially since the Bar’s code of professional conduct says we must be fearless in defending our client. Now lawyers cross the line; it may be obvious lawyers are crossing the line. I for myself don’t see how you put that burden on a client.”

He added: “Stop and think about it. If a client wants to tell me how to do his case he has to fire me. So you’re really telling the client you have to replace your lawyer in the middle of a trial. The likelihood of that being able to be done without occasioning an undue delay in a trial is very difficult to imagine. It would be like if I’m having medical treatment, and someone decides that my doctor isn’t treating me quite right, I don’t see how you tell me rein my doctor in. I could see you telling me you have to change your doctor, but I don’t know how the advice they give would affect a lawyer-client relationship.”

Another senior defence attorney, who wished to remain anonymous, said of Sir Hartman’s admonition: “I don’t think that is fair on the defendant, because he can’t control counsel. And if anybody, they need to hold counsel in contempt. Defendants are already in a precarious position, and for them to be held responsible for what their lawyer does, I think it’s wrong. It’s unconstitutional. I mean, they can advise them that they ought to get another counsel, and then they need to deal with that attorney.”