1

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2008-00560

BETWEEN

HOSEIN’S CONSTRUCTION Claimant

AND

3G TECHNOLOGIES Defendant

Before the Honourable Mr. Justice Vasheist Kokaram

Appearances:

Mr. Terrence Bharath for the Claimant

Mr. Donald Seecharan for the Defendant

JUDGMENT

1. The Claimant has raised an issue of professional ethics. It has taken objection to

Donald Seecharan as counsel for the Defendant and Fariza Seecharan as

instructing attorney at law, continuing to act for the Claimant on the ground that

Mrs. Seecharan is being called as a witness for her own client and that Mr.

Seecharan as counsel is intimately connected to the facts of this case. The law

firm on record for the Defendant is “Shaama Seecharan and Company” with the

two principals being Mr. and Mrs. Seecharan apparent from their firm’s letterhead.

Quite apart from being a witness in this matter, Mrs. Seecharan signed the

Defence and Counterclaim as the attorney on record and certified the truth of the

2

Defence and Counterclaim in the Certificate of Truth as a director of the

Defendant. Throughout the proceedings there is correspondence passing between

the Claimant and the Defendant with references being made directly to the two

attorneys as the directors of the Defendant. The Claimant contends that for these

two attorneys to continue to act for the Defendant would amount to a breach of

Clause 35 Part A, Third Schedule of the Legal Profession Act (“The Code of

Ethics”).

2. Clause 35 Part A of the Code of Ethics provides as follows:

“An attorney at law shall not appear as a witness for his own client except

as to merely formal matters or where such appearance is essential to the

ends of justice.

If an Attorney is a necessary witness for his client with respect to matters

other than such as are merely formal, he should entrust the conduct of the

case to another attorney of this client’s choice.”

3. Contrary to the submission made by the Defendant, this is not a mere formal

objection. The Court must take notice of any allegation of a breach of the code of

ethics by attorneys at law who, being officers of the Court, fall within the purview

of the Court’s supervisory jurisdiction.

4. Furthermore the Code of Ethics sets out the standard of the practice of law in this

jurisdiction. A Court must be careful to demand no less of a standard of the

attorney so as to preserve the honour and dignity of the profession and the

proper administration of justice. As a matter of public policy the court cannot

countenance a lesser standard relating to practice than those which the attorneys

have set themselves for the regulation of their profession. Sopinka J. in

MacDonald Estate v. Martin [1990] 3 S.C.R. 1235 referring to the inherent

jurisdiction to remove from record solicitors, stated:

“Their jurisdiction stems from the fact that lawyers are officers of the court and

their conduct in legal proceedings which may affect the administration of

3

justice is subject to this supervisory jurisdiction. Nonetheless, an expression

of a professional standard in a code of ethics relating to a matter before the

court should be considered an important statement of public policy.”

5. This prohibition in rule 35 of the Code of Ethics underscores the multifarious set

of duties and obligations of the attorney at law. The attorney owes corresponding

duties to his client, to the court and to the public/administration of justice. It is an

ongoing “trilemma” and one of the hallmarks of the profession, underscored by

rule 35, is the ability of the attorney at law to maintain his impartiality and

independence. To be truly considered as giving “counsel” he must be able to,

give fair, independent and objective advice to his client and similarly can be

trusted do the same to the court. It is this impartiality cutting across any blind

allegiance to his client which is an important element of the rule of law. Lord Reid

in Rondel v Worsley [1969] 1 AC 191, 227 stated:

“As an officer of the court concerned in the administration of justice [a

legal practitioner] has an overriding duty to the court, to the standards of

his profession, and to the public, which may and often does lead to a

conflict with his client’s wishes or with what the client thinks are his

personal interests.”

6. Lord McMillan in “The Ethics of Advocacy” alluded to the multifarious duties of

the attorney

“The code of honor of the bar is at once its most cherished possession and

the most valued safeguard of the public. In the discharge of his office the

advocate has a duty to his client a duty to his opponent a duty the court a

duty to the state and a duty to himself. To maintain a perfect poise amongst

these various and sometimes challenging claims is no easy feat.

Transgression of the exorable obligations which these duties imposed upon

the advocate is not like making a mere mistake in business it involves

infringement of his moral duty.”

4

Lord Brown Wilkinson, Hall v Simons [2000] 3 AER 57 usefully highlights this

trilemma and makes the point that the demands of the client do not always trump

that of the discharge of the attorneys duty to the court and to the administration

of justice.

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their

clients, but they may not win by whatever means. They also owe a duty to the

court and the administration of justice. They may not mislead the court or

allow the judge to take what they know to be a bad point in their favor. They

must cite all relevant law, whether for or against their case. They may not

make imputations of dishonesty unless they have been given the information

to support them. They should not waste time on irrelevancies even if the client

thinks that they are important. Sometimes the performance of these duties to

the court may annoy the client.”

7. This obligation to maintain this independence is imbedded in the Code of Ethics.

Part A of the Code of Ethics :

r3: the attorney must “scrupulously preserve his independence in the

discharge of his duties.”

r37: “An attorney-at-law shall endeavour always to maintain his position as

an advocate and shall not either in argument to the court or in address to

the jury assert his personal belief in his client’s innocence or in the justice

of his cause or his personal knowledge as to any of the facts involved in

the matter under investigation.”…

In Part B rule 3 requires the attorney not knowingly mislead the court or to

withhold facts in order to establish the guilt or innocence of the accused.

8. These rules highlight the attorney’s duty to the Court and that he/she must not be

so wedded to his client’s case to affect his ability to impartiality present the facts

and law of the case for the Court’s determination. The Code of Conduct

Canada summarises this obligation as follows: “A barrister must not act as the

5

mere mouthpiece of the client or of other instructing solicitor and must exercise

the forensic judgments called for during the case independently, after appropriate

consideration of the client’s and the instructing solicitor desires where

practicable.”

9. In determining the rationale for the the rule which prohibits a lawyer from being

both counsel and witness Prof. Enker in "The Rationale of the Rule that

Forbids a Lawyer to be Advocate and Witness in the Same Case"1 stated:

“The public often questions how it is that a lawyer is prepared to argue the

cause of either side to a dispute regardless of his personal beliefs.

Sometimes the question is put more pointedly: how can a lawyer

represent a particular unpopular client or a cause he does not personally

support in his private nonprofessional life, and how can he nonetheless

truly do his best to enable his side to prevail? Isn't the lawyer merely

selling himself to the highest bidder? Many find difficulty with and suspect

the role of the lawyer in representing a criminal defendant he knows to be

guilty. It is precisely because the lawyer is not a witness who personally

vouches for what he says, but an advocate whose arguments is

addressed to reason and stand or fall as they are objectively persuasive,

that he is able to represent either side of the issue.

It is, thus, this objective quality of the lawyer's role that renders him

independent of his client no matter whom he represents, which, in turn, is

what enables the lawyer to represent the criminal, the weak, the socially

and politically unpopular — those elements of society whose protection

lies in the demand that reason rather than force and emotion be the test of

their rights. And a clear understanding of the uniqueness of the lawyer's

role is what commands attention to the reason contained in his arguments

and forces his client's adversary to respond on the same basis.

1 (1977), vol. 357, American Bar Foundation Research Journal 455. At pp. 464-65,

6

Under this rationale, the rule under consideration is properly one of

professional ethics. Its concern is not protection of the client's interests but

the integrity of the attorney’s professional role and the preservation of its

uniqueness.

This proposed new understanding of the basis for the rule against being

advocate and witness in the same case has several ramifications. It

suggests that contrary to recent expressions the rule should not be made

subject to the client's consent. Nor would the consent of the other parties

to the proceedings furnish any grounds for allowing the dual appearance.

The rule is not designed to protect the client's interests or those of the

adversary. Its purpose is to protect systemic interests; the client's or

adversary's consent is irrelevant.”

10. The rule is therefore an important element of the due administration of justice

and the rule of law. The counterpoint to this of course is the client’s right to

representation by his attorney of choice. However the Court must weigh carefully

the private desire of the client to choose its attorney (who is also a director and

also giving evidence for the client) and the protection of the “systemic interests”

and obligations of the attorney to the Court. .

11. In this case, the Court is about to embark upon a trial of the Defendant’s

counterclaim. This is a dispute arising out of a building contract dated 8th

December 2005 made between the parties for the construction of a seven storey

commercial building on behalf of the Defendant. The counter claim makes

several allegations of breaches of the said contract including errors, defects and

bad workmanship in the execution of the contract. The counterclaim exceeds

$7million for the payment of a performance bond and consequential loss. The

attorneys in this case for the Defendant are also the directors of the Defendant

Company. There are 4 witnesses for the Defendant with Mrs. Seecharan having

filed a witness statement as the director/secretary of the Defendant. She

7

appears to be the main witness for the Defendant. The trial is set to proceed for

three days 14th to 16th February 2012.

12. In an earlier decision I had dismissed the claim of the Claimant against the

Defendant for monies due and owing to it under the building contract after

hearing a preliminary issue as to whether that debt was assigned to the Republic

Bank Limited. At that trial the attorney on record also gave evidence and counsel

presented the case for the Defendant. I recall an objection being taken by the

Claimant’s previous attorney however because of the nature of the trial, it being a

matter of examining the effect of a letter to determine whether it had validly

assigned the debt to the Bank and that the objection was taken almost mid

stream during the course of the cross examination, I deferred to expediency in

overruling the objection. However I do recall having to temper the robust cross

examination by counsel over matters in which he had a personal involvement

with the witness being cross examined.

13. The level of the attorney’s involvement in this trial of the counter claim is now

more pronounced. The instructing attorney at law for the Defendant, who is also

a director of the Defendant, has filed a witness statement of some 89 paragraph

with copious exhibits. It sets out comprehensively her personal dealings with the

Claimant and the introductory paragraphs of her witness statement explain that

she was in fact the directing mind of the Defendant or the person who took on the

day to day dealings with the Claimant in the execution of the contract. Counsel

for the Defendant is also referred to in the documents and exhibits attached to

the statement and is in fact referred to by name in the Claimant’s witness

statement. In several correspondence in these proceedings the “client” (that is

the Defendant) is described as “Mr. and Mrs. Seecharan”. Key issues of fact will

arise which are based on the several documents, e mails and records of

conversations in which both attorneys may be involved. The trial itself will be a

complex fact finding exercise. The credibility of the attorney at law will like any

other witness be of course open to question and criticism under cross

examination. In that context one certainly wonders to what extent counsel for the

8

Defendant, the partner of the legal firm on record and who will be leading the

evidence in chief of his partner in the law firm and director of the client, can

objectively discharge his duties to this Court.

14. There is learning to suggest that a counsel ought not to represent a client where

a partner of his firm has given evidence. There are American authorities that

suggest that it is no longer acceptable practice for counsel to conduct a trial

where a partner, associate or employee is going to give evidence at the trial.2

“A counsel who appears in court is expected to serve the interests of his

client, but must also exhibit reasonable objectivity in advancing the case

for his client. The role of counsel, in my view, is compromised when a

member of the advocate's firm is called upon to testify for the client.

Counsel is expected to be loyal to his firm member who is now a witness.

How can counsel properly discharge his obligation as counsel if he is, in

fact, honour bound to be loyal to a witness? How can counsel in such

circumstances be expected to argue an issue of credibility with respect to

the evidence of his firm member? Furthermore, the client may also ask

whether the counsel's loyalty to the witness surpasses his loyalty to the

client's interests. Harvard Investments Ltd. v. Winnipeg (City) 1994

CarswellMan 127 Manitoba Court of Queen's Bench, 1994.

15. The Claimant relied on the following authorities in support of his proposition that

both attorneys must withdraw ex parte Ezekiel [1941] 2AER 546, Borneo

2 See annotation by David B. Harrison J.D., entitled "Disqualification of Attorney Because Member of

his Firm is or Ought to be Witness in Case — Modern Cases", 5 A.L.R. 4th 574 (1981). Healthcrest Inc. v. American Medical International Inc., 605 F. Supp. 1507 (N.D. Ga., 1985), the United States District Court, N.D. Georgia, found that a law firm was barred from conducting a case where members of the firm drafted the documents which gave rise to the litigation. In Jackson v. Russell, 498 N.E. 2d 22 (Ind. App. 1st Dist., 1986), the Indiana Court of Appeals upheld a trial judgment where, one week into a trial, lead counsel was barred from continuing to conduct the action where members of his firm were called as witnesses at the trial. In the matter of Re Bartoli Estate, 533 N.Y.S. 2d 324 (A.D. 2nd Dept., 1988), the New York Supreme Court, Appellate Division, upheld a decision barring an attorney from conducting a trial of the validity of a will where a member of his firm had drafted the previous will and would be a necessary witness at the trial.

9

Helicopters v Sabahair Aviation No K22 93 of 2009. In that case the Malaysian

High Court stated:

“It is a well settled principle of law that a litigant has a right to be

represented by a counsel of his choice. However the right to be

represented by counsel of his choice is not an absolute right. A litigant can

only claim the right to be represented by a counsel of his choice if the

appointed counsel is willing and able to represent the litigant.”

16. In the “Hamilton K”3 Justice Sealey held that the evidence given by an attorney

for her client was more than mere formal matters. They were matters germane to

the matter at hand. The affidavit was deemed to be improper as it ran afoul of

rule 35(1) A of the Code of Ethics.

17. The attorney for the Defendant has countered that the objection raised by the

Claimant is in itself objectionable as it smacks of conduct which is in breach of

the code of ethics. He relied on rules 41.1, 41.2. 22.3 and 24 of the Code of

Ethics. He suggested that there was an ulterior motive to these objections

without articulating what that ulterior motive was. The claim he contends involves

a corporate entity and there is no justification to refer to the individuals Mr. and

Mrs. Seecharan in this case. This begs the question why Mrs. Seecharan is

giving evidence in this case. He further contended that the claim was conducted

up to trial thus far without any objection and that in any event the Claimant is

stopped by the principle of res judicata as this Court previously overruled a

similar objection.

18. I do not think that it is a breach of the Code of Ethics for an attorney to

legitimately draw to the Court’s attention a concern in relation to the attorneys

continued conduct of the case. See rule 1 Part A. Further I do not consider

myself bound by any previous ruling made at the trial of a preliminary issue. We

are now far advanced at the stage of a full trial of the counter claim considering

3 In The Master, Officers and Crew on Board Motor Vessel “Hamilton K” v The Owners of the Motor Vessel

“Hamilton K” HCA A5 of 1995.

10

the extensive evidence to be adduced by attorney on record for the benefit of her

client. It matters not in my mind that she is a director of the company. More

reason for her to withdraw so as not to compromise her impartiality and

independence as an attorney at law acting for a client.

19. In dealing with this matter and balancing the respective rights of the client to its

attorney and the obligations of the attorney to this Court and the “systemic

interests” of the administration of justice I have taken into account all the

circumstances: the stage of the proceedings, the significance of the evidence to

be led, the impact of removing counsel on the party’s right to be represented by

counsel of choice, the likelihood of a real conflict may arise, and the connection

or relationship between counsel, the prospective witness and the parties involved

in the litigation.

20. I am of the view that Mrs. Seecharan ought not to be a witness in this matter and

remain on the record. It is objectionable for the instructing attorney at law to give

this evidence while remaining an attorney on record for this party. It is a breach

of rule 35 Pt A Code of Ethics. It is either the witness statement is withdrawn or

the attorney withdraws from acting for the Defendant while she is a witness in

this matter. In that event I will grant her permission to come off record for the

duration of the case with the conduct of the case being entrusted in the care of

another attorney at law. In that case the attorney will be compliant with rule 35

that if an attorney is a necessary witness for his client with respect to matters

other than such as are merely formal, he should entrust the conduct of the case

to another attorney of his client’s choice.

21. Second with regard to Mr. Seecharan, there is no clear breach of rule 35. Mr.

Seecharan is not appearing as a witness in these proceedings for his client.

However the principle underpinning the rule as I was at pains to set out in this

judgment will dictate that generally attorneys should not act as counsel where

either (a) a partner in his firm is giving critical evidence in support of the client’s

case or (b) where he is intimately connected to the facts before the Court. The

appearance of counsel in both those matters impact on his impartiality and his

11

ability to discharge his duties to the court. However in this case I appreciate that

we are at an advanced stage of the proceedings with the trial set for next week

and have weighed the effect that an order at this stage will have on another

matter of policy, trial date certainty. Furthermore there are several procedural

applications yet to be heard which must now be heard before the trial

commences. Those applications include an application for summary judgment by

the Defendant and applications to strike out portions of witness statements of

both parties. I will not therefore ask counsel to withdraw from this case and allow

him to proceed with those procedural applications. Perhaps when the dust settles

there may be no need for a trial or the evidence may be significantly “sanitized”.

If however we are to embark on a trial on the present state of the evidence I

strongly advise counsel to at the very least obtain co-counsel to conduct the

cross examination or I will set firm parameters for counsel in which to act and

that he discharge his duties to the court and his client objectively and impartially.

If he crosses the line I will have no hesitation but to put a halt to the trial and ask

that he too withdraw.

22. Costs are reserved.

Dated 7th February 2012

Vasheist Kokaram

Judge

12