In Re: The Rules of Court (Legal Practitioners); In Re: An Application by "X" for Re-Admission as an Advocate (No Case No.) [1944] EACA 18 (1 January 1944)

#### ORIGINAL CIVIL

### Before SIR JOSEPH SHERIDAN, C. J.

# IN THE MATTER OF THE RULES OF COURT (LEGAL PRACTITIONERS) AND

## IN THE MATTER OF AN APPLICATION BY "X" FOR RE-ADMISSION AS AN ADVOCATE

Advocate—Struck off the roll for official corruption—Re-admission of.

An advocate having been struck off the roll for official corruption for which he was sentenced to nine months imprisonment with hard labour applied after the lapse of two years to be re-admitted. Notwithstanding that the application was supported by the affidavits and letters of numerous advocates as to his good conduct and character in the interval the Court having regard to the nature and gravity of the offence of which the advocate had been convicted, refused the application.

### Slade for Applicant.

Attorney General present.

ORDER.—This is an application by a former advocate of this Court to be admitted once more as an advocate. He was originally admitted as an advocate on the 18th March, 1930, having satisfied the then Chief Justice as to his qualifications and produced the requisite testimonials as to character under Rule 3 of the Rules of Court (Legal Practitioners). He carried on his practice as an advocate continuously for a number of years and on the 26th June, 1942, he was struck off the roll of advocates by an order of this Court in consequence of his having been convicted by the Supreme Court of official corruption contrary to the provisions of section 93 (2) of the Penal Code. For that offence he was sentenced to 18 months imprisonment with hard labour on the 28th March, 1942. On appeal to the Court of Appeal for Eastern Africa his appeal from conviction was dismissed but the sentence was reduced to nine months hard labour for reasons which appear in the following passage in the Appellate Court's judgment:

"As to the sentence, although the offence is one of real gravity made additionally so by the position occupied by the accused who is an advocate and so an officer of the Court, on the other hand by reason of the accused's profession, the consequences of the conviction are much greater than in the case of an ordinary person and so far as we are aware he has hitherto borne an unblemished character. In these circumstances in dismissing the appeal we consider fit to reduce the sentence to nine months hard labour.'

Prior to his being admitted to practice before the Courts in Kenya the applicant had practised in India having been admitted as an advocate of the High Court of Judicature at Lahore on the 25th February, 1927. By letter of the 11th July, 1942, addressed to the Registrar of the High Court of Lahore notice was given of the applicant having been struck off the roll in Kenya. Prior to the present application for re-admission a cable was sent to the Registrar of the High Court, Lahore, asking him whether the applicant was still on the Lahore roll of advocates and on the 11th September, 1944, the following reply was received: "Your cable dated September 4th no proceedings yet started against 'X' as his whereabouts unknown. His name still borne on roll of advocates Lahore High Court."

It is submitted by Mr. Slade for the applicant and conceded by the learned Attorney General that "X" (as I will call him) is entitled to make an application to be once more admitted as an advocate. The responsibility for refusing or granting the application rests of course with me.

Numbers of affidavits and letters from practising advocates have been placed before the Court either recommending (some of them strongly) that the applicant be restored to the roll of advocates or stating that they have no objection to his being restored. Those gentlemen who have known the applicant have testified to his exemplary conduct since he was struck off the roll. During that period he has been employed as a managing clerk in the office of his son, who is a practising barrister. The application for re-admission in the form of an affidavit by the applicant was filed on the 26th August, 1944, just over two years from the date of the order directing his name to be removed from the roll. I will sav at once that while the application before me is a competent one, having regard to the nature and gravity of the offence of which the applicant was convicted and because of which he was struck off the roll of advocates, I am surprised that he should have made an application for re-admission at this date and the many letters and affidavits in support of the application equally surprise me. Possibly the writers and deponents have been actuated by motives of sympathy but apart from that it seems to me that the facts of the crime of which the applicant was convicted or its gravity or both may not have been properly appreciated. I take the following particulars of the offence from the information on which the applicant was tried:

"'X' on or about 28th October, 1941, at $\longrightarrow$ in the $\longrightarrow$ Province corruptly offered to give Assistant Inspector $\longrightarrow$ , a person employed in the Public Service in the Police Department, the sum of £40 if the said Assistant Inspector — in the exercise of the duties of his office could secure the acquittal of one $-$ — upon a criminal charge."

It would be difficult, if not impossible, to think of a more serious offence on the part of an advocate. While nearly every practising advocate has recommended that the applicant be restored to the roll of advocates there have been four exceptions, one of these while expressing a strong view as to the seriousness of the applicant's offence concluded by saying that his firm did not feel that they could offer any recommendation one way or the other; another advocate said: "In the circumstances I am afraid that I object to your client's reinstatement as an advocate." Of the remaining two letters one advocate wrote: "In my opinion, in view of the nature of the offence, Mr. "X" should not be reinstated. The fourth letter is from an advocate whose standing at the Bar is second to none. Writing on behalf of his firm he said: "After giving the matter careful consideration we have to say that we object strongly to the reinstatement of your client as an advocate, either now or at any time as we cannot help feeling that his offence was very serious, too serious to be punished adequately by a sentence of imprisonment of only nine months." (I have already referred to the reasons why the Court of Appeal reduced the sentence of imprisonment.) This letter expresses as no other affidavit or letter does the gravity of the offence. Mr. Slade, while admitting the gravity of the offence, criticizes the objection to reinstatement of the applicant at any time. It is true that I have a discretion in this matter; it is a question whether I shall exercise it in this application. Counsel have referred me to a number of authorities but have been unable to quote any case where a solicitor or barrister has been readmitted after having been struck off the roll or disbarred for such a serious offence as that of which the applicant was convicted. I will refer to some of the authorities quoted.

In the case of In re Brandreth (1891) 60 L. J., K. B. D., it was held that "The Court has power, even when it is proved that a conviction for an offence against the criminal law has taken place, but where the atonement of a long period of good conduct has been offered, to restore a solicitor to the roll." The criminal offence of which the solicitor in that case was convicted and sentenced to six months imprisonment, and for which he was struck off the roll, was that he had

obtained £6 14s. 4d. by false pretences. After two applications for readmission had been refused, and after 12 years from the date on which he was struck off the roll he succeeded in having his name restored. There were exceptional circumstances in that case which led to his third application being successful. Lord Coleridge, C. J., who with Mathew, J., heard the appeal said in his judgment at p. 503: "It (the case) was continued until 9 o'clock at night in the absence of witnesses and in the absence of counsel. This undoubtedly placed the present applicant at an immense disadvantage, how great it is impossible to say .... Twelve years have passed since then and twice in the course of that period have applications been made to restore this gentleman's name to the roll; but on neither occasion has any attempt been made to bring pointedly before this Court the circumstances under which the conviction took place and circumstances which at least make it not impossible that if the argument of counsel had been allowed to proceed, the result would have been different." In the course of the case the unreported case of In re Barker was referred to and followed. In that case Barker had been convicted of complicity in a fraud as to a will. He was transported and ultimately released upon doubts being entertained as to his guilt. He made repeated applications to be restored to the roll and at last the Court of Queen's Bench restored him. It will be seen at once that while these two cases instance the discretion vested in the Court to make an order restoring a solicitor who has been convicted of a criminal offence to the roll, the circumstances of the cases, particularly in Brandreth's case, widely differed from those in the present case. In Barker's case doubts as to the guilt of the accused were entertained and in Brandreth's case circumstances were brought to the notice of the Court revealing unsatisfactory features connected with the trial, as well as other circumstances distinguishing it from the present case.

In the case of *In re Robins* (1865) 34 L. J. Common Law p. 121 an attorney was struck off the roll in 1859 for misappropriating £18 the property of a client. In 1865 it having been shown that the applicant had repaid the money misappropriated, that his past good conduct had been vouched for by those who had employed him and 15 other attorneys, and in addition 38 other attorneys had recommended him for merciful consideration and finally no opposition having been offered by the Law Society his application for readmission was granted. The report does not record that the applicant suffered a conviction.

I need not dwell on the facts differentiating the case from the present case. The two cases bear no comparison from the point of view of their nature or gravity. At the same page of the same volume there is the case of *In re Pyke*. Shortly the facts were that an attorney had his name removed from the roll to be called to the Bar, he was afterwards disbarred for professional misconduct and after the lapse of 20 years he unsuccessfully applied to be readmitted as an attorney on the ground that there were no affidavits of professional persons and others as to his good conduct and character in the interval. What I would emphasize as distinguishing that case from the present one is that the applicant had been disbarred not for the reason that he had been convicted of a criminal offence but for professional misconduct not involving criminality. There is a passage in the judgment of Cockburn, C. J., which shows the principle on which the Court acts in considering applications for readmission.

"On applications to strike an attorney off the roll or to readmit an attorney under peculiar circumstances, we ought to bear in mind that it is not with regard to the individual himself, or the punishment that he may have deservedly brought on himself, that the circumstances are to be inquired into, we have a duty to perform to the suitors of the Court, and not only to the suitors to the Court, but to the profession of the law by taking care that those permitted to practise in it are persons in whose integrity and honour confidence can be placed. Nevertheless I do not think that that rule should be so inexorable as that after a man has undergone a long period of exclusion and punishment and suffering that that carries with it, if we are satisfied that his conduct has been such in the meantime as to ensure. confidence in his character we might not either admit him in the first instance or readmit him"

In the case of *Anonymous* 51 E. R. 1118 a solicitor who had been struck off the roll for misconduct was restored after ten years. The report of the case does not suggest that he had been criminally prosecuted for any offence.

To revert to *Brandreth's case (supra)* Mr. R. T. Reid, O. C., in appearing for the Incorporated Law Society submitted that although there were scarcely any precedents for restoring a solicitor to the roll after a conviction for a criminal offence, so long as that conviction stood, the *Brandreth* application was not opposed. He admitted that the jurisdiction to grant the application existed and submitted that the only question was whether it should be exercised, a matter he was content to leave in the hands of the Court. I have already commented on the facts of the *Brandreth's case* distinguishing them from those in the present case. While I agree that I have a discretion to grant or refuse this application I am left in no doubt as to how that discretion should be exercised. I would regard myself as doing a very great disservice to the public and to the profession if $I$ were to grant this application. The applicant was convicted of a most serious criminal offence, one of exceptional gravity when committed by an advocate, in the course of his profession. He endeavoured to bring about a miscarriage of justice. For that exceptionally grave offence having been convicted and sentenced and his appeal from the conviction having been dismissed he was struck off the roll of advocates. Approximately two years afterwards he applies to be restored to the roll. His application must fail. The application is refused. As to any future applications he may make it is not for me to embarrass my successor or any other judge by predicting their prospects of success or failure. Any such application will have to be considered on its merits if and when made.