[2005]JRC133
royal court
(Samedi Division)
29th September 2005
Before: |
M.C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Brocq, Bullen, Clapham, King, Le Cornu, Morgan and Newcombe. |
Between |
The Bâtonnier |
Respondent |
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And |
Advocate Philip Cowan Sinel |
First Respondent |
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And |
Her Majesty's Attorney General |
Second Respondent |
In the matter of the representation by Advocate Julian Clyde-Smith in his capacity as Bâtonnier.
Advocate J. A. Clyde-Smith for the Respondent.
Advocate T. Hanson for the First Respondent.
Her Majesty's Attorney General
judgment
the deputy bailiff:
1. In accordance with normal practice in such cases, the Court is sitting in private but our decision will be released publicly.
2. The facts giving rise to the complaint are as follows. At the material time Advocate Sinel was the majority shareholder in the SGI Group of Companies which conducted trust company business in the Island. The complainant was an employee of SGI. He became involved in legal proceedings and engaged the legal firm of Sinels to represent him in those proceedings. The matter was dealt with by Advocate Parslow who was then an associate of Sinels.
3. In due course a bill was presented by Sinels for the work which they had done. On 4th March 2004, the complainant complained to the Jersey Law Society over the level of fees and over Sinels' conduct of the matter in certain respects. Two members of the Society were appointed to investigate the matter and on 22nd November 2004 they rejected the complaint of the complainant and upheld Sinels' fees in full.
4. On 18th January 2005, a member of Sinels Finance Department wrote to the complainant giving notice that if the outstanding fees of £7,055.60 were not discharged by 26th January the matter would be referred to a debt collection agency.
5. By letter dated 21st January, the complainant replied saying that he was not in a position to pay the fees as requested. He offered to pay £1,500 immediately and the balance at £25 per month. He said that if additional funds were to become available in the future he would speed up the settlement process. That letter was sent to the Finance Department of Sinels.
6. Later that day the complainant and Advocate Sinel spoke on the telephone. Immediately following that conversation the complainant made a file note. As it is that conversation which forms the basis of the matter before us now, it is necessary to set out what was said:
"Advocate Sinel commenced by stating that he had received a piece of correspondence which was utter nonsense and insulted his intelligence.
He further stated that I had known for some time that the Law Society would rule in favour of Sinels and that my offer was insulting. He further went on to say that I was insolent and that I had better stop wanking myself off and pay the outstanding balance.
He further went on to say that my position at SGI was tenuous to say the "fucking" least and that if I didn't settle the outstanding balance he would personally come to the office and forcibly evict me. I stated that I was not being insolent but that he did not appreciate the position.
He further went on to say that unless I paid the account then Sinels would get judgment against me and that he would personally "fucking" bankrupt me and did I appreciate the consequences of this as my credit rating would be "fucked". "Do I have to spell it out any clearer!?"
He went on to say he was not "fucking" interested in what I had to say and that I had better pay by the due date or else. He went on to say that my comments were totally irrelevant and he was not interested.
I attempted to interject during his rant to advise him that I felt that the Law Society ruling or the delay of their final report was not of my making and therefore I felt that the reason credit had been refused by Sinel was not equitable.
The tone of voice that Advocate Sinel delivered these comments was in an aggressive, offensive and threatening manner. He went on to say that he was "fucking" well not interested in anything I had to say and slammed the phone down.
The conversation then ended and I attempted to contact the Law Society, Advocate Binnington, to relay the comments of Advocate Sinel."
7. The complainant did indeed complain and the matter was referred to the Bâtonnier who appointed Mr Ian James to investigate the matter. We have been referred to the correspondence and initially Advocate Sinel queried what the complaint was, and there was subsequently delay in his dealing with the matter.
8. In due course he made his response, by asserting first that the complaint of the complainant had nothing to do with his conduct as a lawyer; secondly that the complainant had provoked the telephone conversation for the purposes of others who were involved in defrauding SGI; and thirdly, that he was unable to provide a written answer to the complainant's complaint because the complainant's actions related to certain matters that were the subject of civil litigation.
9. Mr James rejected those points and found that Advocate Sinel had acted in breach of Rule 2 of the Law Society's Code of Conduct which provides that it is the duty of every member at all times to uphold the dignity of the legal profession.
10. Despite his response to Mr James, Advocate Sinel has now accepted that he was in breach of Rule 2. Whilst he cannot recall exactly what he said during the telephone conversation he accepts that he used language of the type recorded by the complainant and that the gist of the telephone conversation was indeed as recorded in the note.
11. In a persuasive address to us Mr Hanson has put forward a number of matters in mitigation:
(i) He says that the background to the letter is important. These were people who knew each other well. Advocate Sinel offered to help the complainant with his legal problem, when he told Advocate Sinel of it, by offering the services of Advocate Parslow at a reduced fee rate. Having done that, Advocate Sinel found that the complainant had made what was held to be an unfounded complaint to the Law Society. The Law Society having held that the fees were entirely justified, the complainant then made a derisory offer. At the rate he offered to pay, it would have taken some 15 years to clear the debt. In fact the complainant paid the amount in full within a short period apparently by borrowing from his family. The letter was, therefore, says Mr Hanson extremely provocative.
(ii) The remarks, although wrong and unacceptable, were made to someone who is used to such language. The parties often used such language in conversation with each other. The complainant was an ex-policeman who was not as Mr Hanson put it a 'shrinking violet'.
(iii) Advocate Sinel was under enormous stress at the time:-
(a) His trust company, SGI, was in financial difficulty. In fact since then SGI has been placed in a creditor's winding-up and has ceased business. Litigation is on going between Mr Sinel and his former shareholder with allegations of fraud being made. Although all this was not known to Advocate Sinel at the time, he was aware that there were real difficulties in relation to the trust company.
(b) He had just been through an acrimonious divorce. Although a financial settlement had been reached in December 2004, there were still certain loose ends which had not been resolved.
(c) He was involved in a very difficult set of custody proceedings involving his daughter. Mr Hanson has taken us through what has occurred. We do not need to go into detail in this respect but the Court can well understand the stress which all of this must have caused for Advocate Sinel.
12. As Mr Hanson submitted, the extreme stress of all these matters coupled with provocation of the derisory offer from the complainant led to a momentary loss of control on the telephone and the unacceptable words used. Advocate Sinel now accepted that his conduct was indeed unbefitting and he apologised to the Court.
13. The Court accepts that all the matters which we have set out and which were put forward by Mr Hanson were indeed present. In particular the Court agrees that the offer of the complainant after the finding of the Law Society was wholly inadequate and was indeed provocative. However, an advocate is expected to be able to deal with difficult and provocative matters in the course of his profession. He is not in any circumstances entitled to start swearing at and threatening a client. Against the powerful mitigation put forward by Mr Hanson, the Court must consider the following matters.
(i) This is not the first occasion Mr Sinel has appeared before this Court on a disciplinary matter. Although the previous occasion was for a very different type of matter, the fact remains that he was reprimanded by this Court in 1998.
(ii) Although Advocate Sinel now accepts his error, his initial response was wholly inadequate. It is the duty of an Advocate to co-operate promptly and fully with any disciplinary investigation. That was not the attitude shown by Advocate Sinel towards Mr James at the time.
(iii) This is not just a question of abusive language or the use of swear words. There was a threatening element to the remarks which makes them more serious.
(iv) There is a strong public interest in ensuring that members of the legal profession do not behave in such a manner towards their clients.
14. The Court has in its armoury of disciplinary weapons in ascending order of seriousness, a reprimand, which is a moderate rebuke; a censure, which is a stronger rebuke; a fine; suspension from practice, and ultimately striking off.
15. Mr Hanson has submitted that censure would be sufficient in this case. We have carefully considered that submission and the mitigation which he has put forward. But the unanimous view of the Jurats is that a censure would be insufficient in this case. Because of the factors which we have described above they conclude that a fine is required. The Court accepts that the fine can be at a modest level as set out in the various English examples to which we have been referred both by Mr Hanson and by the Bâtonnier, but nevertheless a fine must be imposed.
16. Therefore the unanimous decision of the Court is that there should be a fine of £1,000, to be paid within 14 days.
Authorities
The Advocate -v- The Attorney General (Olsen) [2003]JRC227.
The Advocate -v- The Attorney General (Le Quesne [2003]JRC077.
The Advocate -v- The Attorney General (Habin) 2002/151.
Re: Advocate Philip Cowan Sinel (the Respondent) 1998/120
Re Nicholass (decision 4248 16 November 1988.
Re Roy Stanley Oddy (decision 4517) 23 May 1990.
Re Peter John Lawson (decision 4582) 12 September 1990.