Attorney Trudy-Ann Russell has won her appeal against a ruling by the General Legal Council that she was guilty of professional misconduct over retainer fees charged to process the sale of a property in Kingston.
The Court of Appeal ruled that the disciplinary committee of the GLC erred in its April 2022 conclusion that Russell violated the canons of professional ethics by charging fees that were not fair and reasonable and departed from the retainer agreement with the complainant.
"On the termination of the agreement by the complainant, the appellant was entitled as a matter of contract law and under the termination clause, to depart from the fixed fee provision and to charge fees on hourly basis," noted the unanimous judgment handed down on May 17.
"...It is difficult to see on what basis her conduct in this regard could be reasonably deemed, beyond a reasonable doubt, to rise to the level of conduct which would bring dishonour to the dignity of the profession,” it added.
The court, comprising Justices Frank Williams, David Fraser and Kissock Laing, who wrote the judgment, set aside the fines that were imposed by the committee and ordered the GLC, which was the respondent, to pay Russell's legal costs.
The disciplinary committee had fined Russell $200,000 and ordered her to pay costs of $50,000 to the GLC and costs of $50,000 to the complainant.
She was represented by attorney Hadrian Christie, instructed by HRC Law. King's Counsel Sandra Minott-Phillips and attorney-at-law Jamaiq Charles, instructed by Myers Fletcher & Gordon, represented the GLC.
The GLC is the regulatory body for the legal profession in Jamaica.
A complaint was made to it by Sheldon Richards who owned a property with his sister as tenants in common. He wanted the property sold and the proceeds shared equally with his sibling.
Richards reported that on September 22, 2020, Richards and Russell signed a retainer agreement for her to pursue the sale. On his instructions, she filed a claim in the Supreme Court on October 27, 2022, to get an order for the sale of the Kingston property.
But Richards became dissatisfied with Russell's service and sent a letter in November 6, 2020, indicating that he was terminating her legal services. He requested a detailed invoice of the work done and a refund of unused monies.
Russell responded with a letter dated November 9, 2020, attaching an invoice in the amount of $935,000, of which $600,000 was stated to be due and owing. The services were calculated at the billable rate of $25,000 per hour based on the termination clause of the contract.
Richards reported the matter to the GLC.
The disciplinary committee had a hearing and later found that the arrangement between the attorney and the complainant was that she should charge a flat or fixed fee of $300,000, plus disbursements. If the effort to get an order for sale of the property went to trial, there would be an additional fee of $250,000.
The committee ruled that Russell was not entitled to use the termination clause to charge for time spent from the inception of the retainer agreement, even though the complainant had terminated the retainer suddenly.
Russell filed several grounds of appeal, one of which was that the committee erred in finding that the termination clause of the retainer agreement for charging an hourly rate was inapplicable.
The GLC's attorney conceded that there is no clear legal authority that there is anything in principle prohibiting the inclusion of a provision in the terms of the termination clause allowing for an hourly rate to be charged.
But she argued that the inclusion of the clause created an inconsistency with the fixed-term provision of the agreement and that where there is a conflict, the court should prefer the word of the complainant over that of the lawyer's.
But Court of Appeal said that "with the greatest of respect", the disciplinary committee erred in finding that because the fixed fee was earned by the time of the termination, the termination clause which allowed for a reassessment of the fees on a hourly basis could not be triggered.
"In effect, the committee has implied a term, in the form of a proviso, that the termination clause shall not take effect and the appellant shall not be at liberty to charge on a time spent basis if the appellant has already earned the fixed fee at the time of the termination of the retainer agreement," Justice Laing wrote.
Laing further noted that with the retainer agreement terminated before the order for the property sale was obtained, the full amount of the fixed fees had not yet been earned and the lawyer was entitled to use the termination clause to calculate her billable hours.
Justice Laing said the conduct of the lawyer should be assessed in the context of the purpose of the termination clause, from the perspective of the appellant.
“Even if, for the sake of argument, the committee was correct that the termination clause did not permit the appellant to charge on an hourly basis, such a construction would not necessarily have been patently obvious to the appellant. Therefore, if she arrived at an alternative conclusion, she would have acted based on her flawed interpretation of the termination clause, in respect of which there is room for reasonable disagreement between legal minds, as the result of this appeal has patently demonstrated," the appeal court said.
“In such circumstances, her (Russell) departure from the terms of the agreement would not be egregious or negligent...” the court ruled.
The court said it was of the view that Russell acted based on the termination clause of the retainer agreement and concluded that "there is no basis to find that she engaged in conduct unbecoming of the profession".
The appeal was heard on November 14, 2023.
- Barbara Gayle
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