No steps have been taken by the judiciary to discipline attorney Nigel Hughes almost two months after it was brought to the attention of the High Court that he and the foreman of the jury in the trial of two Lusignan massacre accused once shared a lawyer-client relationship but the police are conducting their own investigations.
The police were instructed by Justice Navindra Singh to investigate the matter moments after he banned the foreman Vernon Griffith, who was called before the court on August 13.
Crime Chief Seelall Persaud recently confirmed that ranks of the Criminal Investigations Department (CID) have launched an investigation into what he described as Hughes’ breach of procedures, which were allegedly committed owing to his failure to make the full disclosure to the court. Based on what Persaud told this newspaper, the investigators may be looking to build a contempt of court case.
Persaud said some statements have been taken and attempts were being made to make contact with some of the jury members. He said Hughes has not yet given a statement to the investigators.
Stabroek News was unable to ascertain if Griffith was among those who had given a statement.
It was after the trial had concluded on August 2, with James Anthony Hyles and Mark Royden Williams both being found not guilty of the murders of the 11 persons killed at Lusignan in 2008, that the court was informed that Hughes had represented Griffith years earlier in a civil matter. The Director of Public Prosecutions (DPP) has since filed an appeal with respect to the outcome of the trial.
Griffith, when asked by the judge if he had ever had a case before the court, hesitated before replying in the affirmative. Asked who was the lawyer, the man said he was represented by two lawyers from the Hughes, Fields & Stoby law firm—a female and possibly Hughes himself.
The judge then informed him that he had the case file before him and Hughes was indeed his lawyer in the court. The judge then reminded him that before the commencement of the trial the court had specifically asked members of the jury if they had any connection with the defence or the prosecution they should inform the court. He asked Griffith why he did not inform the court that Hughes was his lawyer for six years and Griffith said because he did not know Hughes personally.
Justice Singh expressed the desire to hold Griffith in contempt of the court but said it was a procedure that could not be applied as the proceedings had concluded and as a result he opted for banning him from jury service for life.
In selecting the jury for the case, the court had individually questioned prospective jurors extensively.
When contacted recently, Hughes said he did not want to comment on the matter. Subsequently asked to respond to certain issues, including whether he had checked to see if it was he or his firm who had represented the foreman and the public’s view that his association with the man might have influenced the outcome of the trial, he said “the matters which you have raised are all specific grounds of appeal and hence sub judice. It would be inappropriate for me to comment in the light of the above.”
When Griffith was handed the life ban, Hughes was overseas but had told this newspaper in a correspondence that when he returned to Guyana he would check the company’s files on the representation of the foreman.
He had stressed that it was impossible for him to remember all of his clients and he questioned why only after the trial had ended that the matter was being brought to the attention of the court. Based on what the Office of the DPP said in its appeal of the verdicts of the case, Griffith was Hughes’ client from 2002 to 2008. The appeal identified Nujomo Bryan, a clerk attached to the Chief Justice’s (CJ) office, and Sergeant Wishart, a Court Orderly attached to the CJ’s office, as the persons who informed Justice Singh that they recognised Griffith as one of Hughes’ clients.
There seems to be some dispute as to who can discipline Hughes. Some in the legal fraternity say it’s the responsibility of the Legal Practitioners Committee as provided for in the law, while others have expressed the view that the court has full jurisdiction to do so.
According to the Legal Practitioners (Amendment) Act 2010, the committee, which shall consist of no more than 14 members (12 attorneys with the Attorney General (AG) and the Solicitor General being ex afficio members) shall be charged with hearing and determining complaints against attorneys-at-law. The Registrar or any person deputed by him shall perform the duties of Secretary to the Committee.
AG Anil Nandlall in an invited comment said that any client or person aggrieved can make a complaint alleging professional misconduct against any lawyer. He noted that the Act provides that the breach of any of the code of conduct constitutes professional misconduct and added that the code of conduct is “very wide and embracing.’
According to Nandlall, the legislation further provides for any member of the committee or registrar to make a similar complaint.
Section 35 of the Act, which deals with Complaints to the Committee, states that “(1) A client or, by leave of the Committee, any other person alleging himself aggrieved by an act of professional misconduct, committed by an attorney-at-law, other than the Attorney General or a Law Officer, may apply to the Committee to require the attorney- at-law to answer allegations contained in an affidavit made by a client or other person, and the Registrar or any member of the Committee may make a like application to the Committee in respect of allegations concerning any professional misconduct or any criminal offence as may for the purposes of this section be prescribed by the Chancellor with the approval of the Bar Associations.”
It adds, “(2) In any matter or hearing before any Court, where the Court considers that an act referred to in subsection (1) has been committed by an attorney-at-law other than the Attorney General or a Law Officer, the Court may make or cause the Registrar to make an application to the Committee in respect of the attorney-at-law under that subsection and (3) Any application under subsection (1) shall be made to and beard by the Committee in accordance with rules made under section 40.”
Under Section 36, which deals with the powers of the Committee, it is stated that “(1) on the hearing of an application under section 35, the Committee may —
(a) Dismiss the application;
(b) Impose on the attorney-at-law to whom the application relates, a fine not exceeding two hundred thousand dollars as the Committee thinks proper;
(c) Reprimand the attorney-at-law to whom the application relates; or
(d) make an order as to costs of proceedings as it thinks fit, and in addition, except where the application is dismissed, the Committee may order the attorney-at-law to pay the applicant or person aggrieved a sum by way of compensation and reimbursement and any further sum in respect of expenses incidental to the hearing of the application and the consideration of the report as it thinks fit.
“(2) The removal from the Court Roll of the name of an attorney- at-law shall not be a bar to the continuation of the hearing and determination of an application.
“(3) Where the Committee is of the opinion that a case has been made out which justifies punishment more severe than may be imposed by it under this section like suspension from practice or removal from the Court Roll, the Committee shall forward to the Chancellor and to the Attorney General a copy of the proceedings before it and its findings.
(4) Every order made under this section shall be drawn up, settled and signed by the Registrar who shall keep a written record of all decisions and records.
(5) Where an attorney-at-law is ordered by the Committee to pay compensation or to make reimbursement to an applicant or other aggrieved person, any compensation or reimbursement may be taken into account in the assessment of damages recoverable against the attorney-at-law in any civil proceedings brought against him by the applicant or other aggrieved person in respect of any act or default which was the subject matter of the application which gave rise to the order of the Committee.”
The Act also details all the administrative arrangements in place for the Committee as well as the procedure on application for removal from the Court Roll and the suspension of practice by order of court among other issues.
Nandlall, in his interview with this newspaper, stressed that the Act is very wide and open for complaints to be made and he noted that even the relatives of a deceased person for example can make a complaint or the committee members themselves, including him. “If the AG is to make such a complaint the first utterance that will emanate is that the AG is engaging in political persecution and politics will be attributed as the singular motive inspiring any action which the AG may wish to take,” he stressed.
While citing the recent attack on Town Clerk (ag) for moving to the court to recover millions of dollars in rates from delinquent businesses, Nandlall said that “whenever the law is being enforced persons are contaminating the legal process with political motive.”
He said that one ought to look at the response of the Guyana Bar Association as well as the Guyana Women’s Lawyers Association with respect to the Hughes’ matter. According to Nandlall all he did was to request a reaction in the form of a statement from them as stakeholders since their silence could be interpreted as lending “support to the allegations of egregious misconduct committed during the course of a murder trial.” However, he said that the response of both bodies was one that sought to “attack me but the public remains the judge.”
According to Nandlall, the court had been informed of improper relations between the foreman of a jury and a defence counsel. “Unfortunately based on the information I read in the press, it appears as if this disclosure to the court was made ex post facto the trial. The court would become functus officio rendering it impotent to revisit the concluded matter.” He said that it is now only for an appellate tribunal to review what had transpired and determine whether that which allegedly took place actually took place and if it did whether it was unlawful and consequently resulted in a miscarriage of justice.
He said that he presumes that appropriate action will be taken based on the finding of the Appellate Tribunal. He noted that the appeal process ought to be independent and apart from the Legal Practitioners Committee. He explained that if a complaint is lodged, irrespective of whether a court is seized of the matter, the Committee can proceed to hear and determine the complaint before it. He noted that it is open to the Committee to put the complaint on hold until the hearing and determination of the legal challenge.
He said that as far as he is aware no complaint in relation to Hughes’ alleged conduct has been made to the Committee.
A source close to the Committee confirmed that that no official complaint has been made and as a result it has no power to take action. It was explained that the committee is divided into two factions – each comprising six members. The first is headed by attorney Robin Stoby and the second by attorney Rafiq Khan. The two committees meet regularly but separately.
While noting that a complaint has to be made before the committee can conduct a hearing, the source said that if the court finds that there has been some misconduct before it by a lawyer then it has its own mechanisms to deal with it. According to the source, the court also has the jurisdiction to act. Among the mechanisms, the source said, is the institution of contempt charges against the lawyer, especially since a wrong has been committed before the court. The source said that the lawyer will be called upon to defend the charge and the court has the jurisdiction to commit the lawyer to prison or impose some other penalty which it sees fit if the explanation give is not satisfactory.
All complaints are dealt with in camera, the source said, while adding that the proceedings are conducted like a trial. The source said too that the court need not go to the police to have a misconduct matter dealt with. According to the source, when the 2010 amendment was being made there were persons in the legal fraternity who did not like the idea of only lawyers being members of the Committee. The source said that some preferred that there be some mechanism in place where stakeholders such as non-governmental organizations (NGO) could have members sitting on the committee. This suggestion was, however, never taken on board.
The source said that fines are imposed on lawyers who are found guilty of misconduct. The source said that in 90% of the cases, clients come and ask for reliefs which the Committee has no jurisdiction to grant, including reimbursement of legal fees that had been paid.