JUDGMENT OF THE DISCIPLINARY COMMITTEE

(:OMPLAfNT NO. 28/2005

MICHAEL HYLTON COMPLAINANT

AND

ANTOINETTE HAUGHTON CARDENAS RESPONDENT

PANEL PAMELA BENKA-COKER Q.C.

STEPHEN SHELTON

CHARLES PIPER

THE COMPLAINT: by Form of Application dated the 4th day of February 2005 thecomplainant Michael Hylton, attorney -at-Iaw- and member of the General Legal Council(hereinafter referred to as the complainant) initiated a complaint against the respondentattorney-at-law Antoinette Haughton Cardenas (hereinafter referred to as the atto iey).

In his affidavit in support dated the 4th day of February 2005, the complainant alleges thefollowing;

In paragraph 3 "the respondent Antoinette Haughton Cardenas was admittedto practice as an Attorney-at-Law of the Supreme Court of .1udicature ofJamaica on the l " January 1979 and in each of the years 1999,2000.200 I.and2003 the Respondent applied for and was granted a practicing certificatepursuant to the Legal Profession Act.

2 In paragraph 4 " it has come to my attention as a member of the Council thatANTOINETTE HAUGHTON- CARDENAS has been involved in conductwhich may be in breach of the Legal Profession( Accounts and Records)Regulations 1999.

3 In paragraph 5 "that the conduct to which reference is made in paragraph 4hereof is that the Respondent Attorney has failed to deliver to the Secretary ~,rthe Council an accountant's report in respect of the financial year/s) 199((2000,2001, 2003 contrary to Rule 16( 1)of the Legal Profession( Accounts andRecords)Regulations 1999.

4 In concluding in paragraph 6, the complainant alJeges "J have reasonable andprobable grounds to believe that the Respondent is guilty of misconduct in aprofessional respect having regard to the provisions of Rule J 7 of the LegalProfession (Accounts and Records) Regulations, 1999.

There is also an affidavit from Althea Richards, the Secretary to the General LegalCouncil dated the loth February 2005. In this affidavit she depones to her position

2

with the General Legal Council and that she has the responsibility of keeping therecords of the Council and "pursuant to the Legal Profession OAccounts and Records}Regulations 1999 I have a responsibility to receive the Accountants' Reports whichare required thereby to be delivered to me by Attorneys-at-Law"

The Secretary continues in paragraph 2 " Mrs. Antoinette Haughton Cardenas has notdelivered to me or to the office of the General Legal Council any Accountant'sReport for the years 1999,2000,2001 and 2003 and has not for any of those yearsfiled a Declaration in the Form of the First Schedule to the said Regulation. "

THE HEARING: On the 26th May 2006 the complaint came up for hearing. Theattorney did not attend the hearing but the complainant did. The panel satisfied itself thatthe attorney had been properly served with The Notice of Hearing in keeping with rules 5and 21 of the Fourth Schedule of the Legal Profession Act.

The panel determined to proceed with the hearing of the complaint in the absence of theattornej as it is empowered to do pursuant to rule 8 of the said Fourth Schedule to TheLegal Profession Act, and to rely on affidavit evidence as permitted by rule 10 of the saidFourth Schedule.

The hearing ofthe complaint commenced. The complainant Michael Hylton gaveevidence. He stated that he was Queen's Counsel and a member of the General LegalCouncil. He said that on the 4th February 2005, he swore to the Form of Complain: and anaffidavit in support against the attorney Antoinette Haughton Cardenas who has offices at52-60 Grenada Crescent Kingston 5.

The witness continued that in the said affidavit he said at paragraphs 4 & 5 " It has cometo my attention as a member of Council that Antoinette Haughton Cardenas has beeninvolved in conduct that may be in breach of the Legal Profession (Caner s ofProfessional Ethics) Rules and the Legal Profession ( Accounts and Records)Regulations 1999"

The witness agrees that this conduct refers to the years 1999,2000,2001, and 2003 inrelation to which he alleges that that the attorney has failed to deliver to the secretary ofthe Council an Accountant's report in respect of the financial years.

The witness then produced in evidence as exhibit 1 the Form of AppJication and Affidaviin support.

The witness then advised that the attorney had submitted Accountant's reports for theyears 2001, 2002, 2003 and 2004 he stated that he did not see any report for the years1999 and 2000. It must be noted here that although the complaint relates to the years1999,2000,2001, and 2003, the attorney had also submitted reports for the years 2002and 2004.

3

The Reports for the years 2001, 2002, 2003 and 2004 were admitted in evidence asexhibit 2. The hearing of the complaint was then adjourned to the 24th July 2006 to permitthe attorney another opportunity to defend the allegations in the complaint.

On the 24th July 2006, the attorney appeared before the Committee, she was representedby Paul Beswick attorney-at-law. At this hearing counsel for the attorney did not addressthe merits of the complaint but made legal submissions the substance of which was asfollows.

The General Legal Council (the Council) has no power to make regulations requiringattorneys-at-law to deliver accounts or accountants' reports to the Council during anyperiod of time, whether within six months of a given event or over any longer or otherperiod.

He said that the Council's powers are limited by section 35(1) of the Legal ProfessionAct (the Act) to making regulations only in relation to the specific items referred to insection 35(1) (a) and (b).

Counsel expanded his submissions to bolster his essential arguments. It is not necessaryto repeat them here.

The panel rejected the submissions of counsel and was of the view that Mr. Beswick'sinterpretation of the law is incorrect. The panel ruled that section 35( 1) is so worded toempower the Council to make the Legal Profession (Accounts and Records) Regulations]999, as it has done.

The panel expressed the opinion that the limitation Mr. Beswick sought to place onsection 35(2) is not one which appears to it, to follow upon a proper interpretation of thesubsection. The panel expressed the opinion that "nothing in the subsection supports thesubmission that the power given to the Council is to be limited to an application by theCouncil, to the Court. The panel also relied on section 12(7) of the Legal Profession Actto reaffirm its view that the requirement that an attorney produce an annual accountant'sreport to the General Legal Council is "intra vires" the Act.

The respondent attorney appealed against the ruling of the Disciplinary Committee. TheCourt of Appeal of Jamaica ruled in favour of the respondent and decided that the"General Legal Council was not and is not generally authorized to request attorneys-at-law to produce accountants' reports in each year, in a situation where there is noallegation by, or complaint from a client" See paragraph 10 of the judgment inSupreme Court Civil Appeal No. 82/06 Antoinette Haughton -Cardenas v TheGeneral Legal Council delivered on the 20th December 2007.

The General Legal Council appealed the decision of the Court of Appeal to the JudicialCommittee of the Privy Council. The Privy Council overturned the decision of the Courtof Appeal and held that section 35(2) ofthe Legal Profession Act gave the General LegalCouncil the power to make regulation 16(1) of the Legal Profession (Accounts and

4

Records) Regulations 1999. It must be noted here that in its decision in paragraph 28, thePrivy Council judgment refers to section 33(2) of the Legal Profession Act. That is anerror and really should be quoted as section 35(2). There is no section 33(2) of the LegalProfession Act. See Privy Council Appeal No. 45 of 2008 The General Legal Councilv Antoinette Haughton -Cardenas.

In the light of the decision of the Judicial Committee of the Privy Council, the panelwhich had started the hearing of the complaint resumed the hearing of the complaint onthe ih November 2009.

The complaint was called at 9.45 a.m. The hearing of the complaint had been scheduledfor 9.30 a.m. There was no response from either the respondent attorney or her attorney-at- law Paul Beswick. The panel satisfied itself that the parties had been properly servedwith Notice of the Hearing as required and determined to proceed in the absence of theparties.

The panel introduced into evidence the affidavit of Althea Richards dated the 10th

February 2005 as exhibit 3. The panel then closed the evidence in the complaint andreserved judgment. At no time after the decision of the Judicial Committee of the PrivyCouncil was delivered and the complaint was scheduled for hearing did either theattorney or her attorney -at-law Paul Beswick appear nor was any explanation given fortheir absence.

THE LEGAL PROFESSION (ACCOUNTS AND RECORDS) REGULATIONS1999.

It has always been the law, statutory and at common law, that an attorney should keepaccounts of funds received by him/her on behalf of clients or third parties separate andapart from his! her own funds. There should be no co-mingling of funds and of course nofunds entrusted to an attorney-at-law should be used for any other purpose than that forwhich it was entrusted and certainly not for the attorney's own use.

Attorneys are in a fiduciary relationship with their clients, one which is essentially one oftrust, and which demands the very highest standards of probity, integrity and honesty.Looked at pragmatically, these ethical requirements of an attorney are indeed moralrequirements which the law has incorporated. It is easy to understand why they exist andwhy they form the substratum of the client/attorney relationship.

The above Regulations were passed to reinforce the basic ethical duties of attorneys -at-law as they relate to their treatment of clients' funds and assets which they hold in theircustody and indeed the assets and funds of third parties. The Regulations provide some ofthe checks and balances necessary to ensure that these standards are maintained, and tohold attorneys accountable for any infringements of these standards.

·.5

The said Regulations detail the accounting records to be kept by attorneys and the mannerin which such accounts are to be kept. The panel recommends that all attorneysfamiliarize themselves with the provisions of the Regulations. They will not be recountedhere, but it is important to refer to regulations 16 and 17 of the said Regulations whichare relevant to these proceedings.

Regulation 16(1) reads as follows "Every attorney shall not later than six months afterthe commencement of any financial year (unless he or she files a declaration in the fromof the First Schedule which satisfied the Council that owing to the circumstances of his orher case it is unnecessary or impractical for him or her to do so) deliver to the Secretaryof the Council an accountant's report in respect of the financial year next preceding thatyear."

16(2) Every attorney shall produce or cause to be produced to the accountant whoseaccountant's report he or she proposes to deliver to the Secretary of the Council pursuantto paragraph (1) all books, records accounts required by Regulation 6 to be kept by himor her and, in addition, any files or other documents connected with, or related to, orexplaining or throwing any light on, anything in those books, records and accounts.

Regulation 16(3) defines who the accountant should be, and Regulation 16(4) identifiesthe format of the report

Regulation 17 states "Failure by an attorney to comply with any of the provisions ofthese Regulations shall constitute misconduct in an professional respect for the purposesof section 12 of the principal Act."

Section 12 of the Principal Act of 1971 as amended by the Legal Profession(Amendment) Act 2007 enacts the sanctions that may be imposed by the a panel of theDisciplinary Committee of the General Legal Council ifit finds the attorney guilty ofalleged breaches of the Legal Profession (Accounts and Records )Regulations 1999.

In this case, the attorney filed all four accountant's reports which she did submit, late.They were all filed later than six months following the year to which the accountant'sreport relates.

That is to say, the report for the year 2001 which should have been filed on or before theso" June 2002 was filed with the offices of the General Legal Council on the 14thSeptember 2005.

The accountant's report for the year 2003 was filed by the attorney with the offices of theGeneral Legal Council on or before the 30th June 2004, this report was filed on the 141h

September 2005.

The attorney has never submitted accountant's reports for the years 1999 and 2000 to theGeneral Legal Council.

·.6

BURDEN OF PROOF:

The panel reminds itself that the burden of proof to establish the complaint is on thecomplainant and remains so despite the fact that the complaint was never defended by theattorney on its merits, although she did submit two accountant's reports relative to thecomplaint.

STANDARD OF PROOF: In all complaints of professional misconduct the standard ofproof is that of "beyond reasonable doubt." The panel always reminds itself of the graveconsequences that may flow from a finding adverse to the attorney and for the need toapply this standard in all cases under its consideration. It does so in this case.

The panel relies on the affidavit and oral evidence of Michael Hylton Q.c. and theaffidavit evidence of Althea Richards in making its evaluation of the evidence and theaccountant's reports filed by the attorney for years 2001 and 2003. This evidence wasunchallenged by the attorney.

FINDINGS: The panel makes the following findings as it is required to do pursuant tosection 15 of the Legal Profession Act. As already stated, the evidence in the complaint isunchallenged. The panel finds to a standard of proof of beyond reasonable doubt that,the attorney has committed the following acts:

The attorney has breached regulation 16(1) in that she failed to file theaccountant's reports for the year 2001 on or before the so" June 2002.

2 The attorney has breached regulation 16( 1) in that she failed to file theaccountant's reports for the year 2003 on or before the 30th June 2004.

3 The attorney has breached regulation 16(1) in that she failed to file anaccountant's report for the financial year ending in December] 999.

4 The attorney has breached regulation 16(1) in that she has failed to file anaccountant's report for the financial year ending in December 2000.

All the above findings indicate that the attorney is guilty of four breaches of the LegalProfession (Accounts and Records) Regulations 1999.

In light of the above findings, it is the decision of the panel that the attorney AntoinetteHaughton Cardenas is guilty of professional misconduct pursuant to the provisions ofregulation 17 of the said Legal Profession (Accounts and Records) Regulations 1q99.

It is now the duty of the panel to consider and impose the appropriate sanctions on theattorney for these breaches of the subject Regulations.

The attorney has two previous findings of professional misconduct which are disc! sedby the Records of the General Legal Council. There is the complaint of Mr .. JosephTerrelonge v Antoinette Haughton Cardenas, in which complaint the attorney failed toinitiate legal proceedings in a claim for negligence and was fined. Then there is

7

complaint No 4112007 Avis Smith v Antoinette Haughton Cardenas. In this co plaintthe attorney had carriage of sale of property registered in the names of the complainantand her brother.

The attorney was paid the net proceeds of sale. She failed to pay over these sums to thecomplainant vendor and never explained to the panel the reasons for this failure as shenever gave evidence before the panel of the Disciplinary Committee and presented nodefence against these very grave allegations. It involved allegations of dishonesty.

The attorney was found guilty of professional misconduct and struck from the Roll ofattorneys-at-law entitled to practise in the island of Jamaica by way ofjudgementdel ivered on the 3151 July 2009.

The panel is of the considered opinion that the failure to file any accountant's report forthe years 1999 and 2000 are very serious breaches of the attorney's legal and ethicalobligations under the Legal Profession (Accounts and Records) Regulations 1999.

These are not Regulations that attorneys-at-law may choose to obey or not or del y inobeying. They have been enacted to protect the public, and the general reputation of thelegal profession, and are of the utmost importance in maintaining the integrity andprobity of the profession and upholding the high ethical standards demanded of themembers of the profession. They assist in ensuring that all of us who hold ourselves outas attorneys at law, must at all times be "fit and proper" persons worthy of belonging towhat is customarily referred to as an honourable profession.

SANCTION: In the circumstances of this case, in the light of the fact that the attorneyAntoinette Haughton Cardenas has never filed accountant's reports for the years 1999and 2000, and the fact that she has already been struck from the Roll of attorneys-at-lawentitled to practise in Jamaica pursuant to an order made by the Disciplinary Committeeof the General Legal Council on the 31st July 2009, the panel has given carefulconsideration to the appropriate sanction to be imposed in these circumstances.

The panel considered the legality of any sanction to be imposed, its implications in law,as well as what would be commensurate with the gravity of the proven breaches of theLegal Profession (Accounts and Records) Regulations 1999.

The panel is guided by previous decisions of the Disciplinary Commi ttce of the Genera ILegal Council in the complaints of Michael Hylton Q.c. v Cynthia Levy Browncomplaint No. 23/2005 delivered on the zo" May 2006 and Dr. Lloyd Barnett vMichael Williams complaint No. 114/2005 delivered on the 12th December 20(]l9.

In light of the above, the panel states that if the respondent attorney-at-law AntoinettelIaughton Cardenas had not already been struck from the Roll of Attorneys-at-Lawentitled to practise in Jamaica, the panel would order that she be struck from the R II ( fAttorneys-at-Law entitled to practise in Jamaica because of the gravity of the withinstated breaches.

,,' 8

The panel therefore words the sanction imposed in the following way:

The panel recommends that the attorney-at-law Antoinette Haughton Cardenas be struckfrom the Roll of attorneys-at-law if she is at any time restored to the Roll of Attorneys-at-Law entitled to practise in Jamaica and that such sanction is imposed to run consecutivelyto the original order striking her off the said Roll.

Dated the;:zA'}y of the ~d~ 2010.

fJ4ftPAMELA

STEf~~:..:.:::::

CHARLE~~IP·ER •.~