[1938] EACA 184

## ORIGINAL CIVIL

## Before THACKER J.

## IN THE MATTER OF THE RULES OF COURT (LEGAL PRACTITIONERS) 1926 and

## IN THE MATTER OF B. J. S., an Advocate of the Supreme Court of Kenya

Advocate—Unprofessional conduct—Rules of Court (Legal Practitioners) 1926, Rule 7 $(f)$ .

Held (11-8-39).—That the words "unprofessional conduct" in Rule 7 (f) of<br>the Rules of Court (Legal Practitioners), 1926, mean any misconduct committed by an advocate in his professional character or otherwise and they provide for any conduct which unfits an advocate to remain a member of the profession.

The facts appear from the judgment.

Willan, Acting Attorney-General, Applicant.

Burke for the Respondent.

JUDGMENT.—This is an application by the Acting Attorney-General asking that B. J. S., Advocate of this Court practising in Mombasa, be suspended from practising or that his name be struck off the Roll of Advocates of this Court.

An affidavit has been filed by Mr. Willan which with its annexures shows that B. J. S. has been convicted five times before the Magistrate at Mombasa of stealing various sums from the Mombasa Law Society whilst B. J. S. was acting in the capacity of Honorary Secretary and Treasurer. The total sum involved was Sh. $845/25$ .

**B. J. S.** pleaded guilty to each charge. Three charges were heard on the 18th March, 1939, and two charges were heard on the 29th March, 1939. B. J. S. was convicted and ordered to pay a fine for each offence. The dates of the offences and amounts involved were as follows:—

| 22nd March, 1937 | $\cdot$ | $\cdot$ | $\sim$ $\sim$ | Sh. 160 | |---------------------------|---------|---------|---------------|--------------| | 9th April, 1937 | $\cdot$ | $\cdot$ | $\cdot$ | Sh. 150 | | 11th March, 1937 | . . | $\cdot$ | $\sim$ | Sh. $290/25$ | | 6th December, 1938 | $\cdot$ | $\cdot$ | . . | Sh.80 | | <b>28th January, 1937</b> | $\cdot$ | $\sim$ | | Sh. 165 |

These proceedings have been commenced by the Attorney General under the Rules of Court (Legal Practitioners) 1926, and in particular under Rule 7 $(f)$ . The Attorney General has pointed out that the thefts to which B. J. S. has pleaded guilty extended from the 18th January, 1937, to the 6th December, 1938, and there is no question but that B. J. S. has stolen the amounts alleged in his capacity as Honorary Secretary and Treasurer of the Mombasa Law Society. The Attorney General has submitted that this is a proper case for striking B. J. S.'s name off the Roll of Advocates of this Court and that the offences are so grave as not to permit of an order being made for mere suspension.

Mr. Willan has referred me to Cordery's Law Relating to Solicitors, Fourth Edition, at page 230 et seq., and in particular to the case of In re Weare (1893) 2 Q. B., p. 439. This was a case where a Solicitor in England had been convicted under the Criminal Law Amendment Act 1885 for unlawfully and wilfully being a party to the continued use of premises owned by him as landlord as a brothel for which offence he was sentenced to a term of imprisonment. In that case it was held that a Solicitor may be struck off the Roll for an offence which may have no relation to his character as a Solicitor, the question being whether it is such an offence as makes a person guilty of it unfit to remain a member of the profession. A conviction for a criminal offence prima facie makes a Solicitor unfit to continue on the Roll but the Court has a discretion and will inquire into the nature of the crime and will not as a matter of course strike him off because he has been convicted. The Court considered in that case that the nature of the offence was such that the Solicitor ought to be struck off the Roll.

I have also had cited to me by the Attorney General the case of In re A Solicitor ex parte the Law Society (1912) 1 K. B., page 302, and in particular the remarks of Darling, J., at page 311. In support of his argument that this advocate ought to be struck off the Roll and not merely suspended the Attorney General has stated that his conduct has been such that other advocates ought not to be allowed to meet him professionally; further having regard to the fact that this advocate has stolen the money of the Mombasa Law Society it can hardly be expected that he would deal with his own clients' money in any different fashion.

Mr. Burke for B. J. S. has made two points, the first being that Rule 7 (f) of the Rules of Court referred to which reads as follows: $-$

'An advocate may be suspended from practising or his name may be struck off the Roll by order of a Judge of the Supreme

Court $\ldots$ (f) if he is otherwise guilty of unprofessional conduct." has to be read ejusdem generis with the preceding five sub-rules; and secondly Mr. Burke has submitted a plea ad misericordiam and has stated that financial distress overtook B. J. S. and he took this money for that reason and that there was no secrecy about it. I gather that this argument really amounts to this, that B. J. S.'s intention was to refund the money when his financial position improved. Mr. Willan has replied that it is not true that there was no secrecy about this matter and says that the matter was not discovered until a considerable time after these sums had been taken.

I will deal first with the point raised ad misericordiam. I am not impressed with the plea that it was B. J. S.'s intention to refund the money or that there was no secrecy. The excuse that he was intending to refund the money is one that is not infrequently put forward by a guilty person when his offence is discovered and there can be no question that in abusing his position as Honorary Secretary and Treasurer of the Mombasa Law Society this advocate has committed a very grave offence. I am afraid that I cannot see in his conduct any redeeming feature which would justify my taking a lenient view. of the matter.

The legal point raised by Mr. Burke is one which has given me more trouble because it is by no means easy to discover what is meant exactly by the words "unprofessional" conduct in Rule 7 (f). I am inclined to think that it is the equivalent of the words "professional misconduct" which are the words used in Cordery, and Mr. Willan has argued that the words "unprofessional conduct" mean conduct which is dishonourable according to the standard to be expected from a member of the profession. I am inclined to agree that the words do amount to that.

Not much help can be obtained from the English practice which is somewhat different to our own. The English practice (see Halsbury's Laws of England, Hailsham Edition, Vol. 31, at page 295) depends

$\mathcal{A}^{\ast}$

upon statute, viz. The Solicitors Act, 1932. I am inclined to the opinion that Rule 7 (f) is not to be read ejusdem generis with subrules $(a)$ to $(e)$ because, as the Attorney General points out, Rule 7 (b) contains the words: $-$

> "if he is guilty of fraudulent or improper conduct in the discharge of his professional duty".

It seems to follow from the inclusion in Rule 7 $(b)$ of that condition that the words "unprofessional conduct" in Rule $7(f)$ mean any misconduct committed in his professional character or otherwise. The words are intended in my judgment to provide for any conduct which unfits an advocate to remain a member of the profession. I do not think the words are to be restricted to conduct qua Solicitor. I therefore hold that the conduct which this advocate has committed namely, the stealing of the funds of the Mombasa Law Society, comes within the words "unprofessional conduct". In this connexion<br>Cordery on page 231 says that in England improper professional conduct is not limited to cases where the misconduct charged is professional in character but extends to all cases where the Solicitor's conduct is such as to render him unfit to be an officer of the Court.

If I am incorrect in this interpretation of the words "unprofessional conduct" I should nevertheless still hold that this advocate's conduct is such that I am obliged to take notice of it and have jurisdiction over it and in order to do so I should call into aid the inherent jurisdiction which I think this Court must possess if it is to be master in its own house. It would be manifestly absurd to contemplate a state of affairs which permits an advocate of this Court to be convicted of stealing and yet for the Court to be powerless to prevent his carrying on his professional work as an advocate. That position would be ludicrous and cannot for one moment be contemplated with any comfort.

This is, I need hardly say, a most painful case for any Judge to have to adjudicate upon. It is a most unpleasant task but I have to consider the interests of the profession as well as the interests of the public at large as it is manifestly wrong that this advocate should be permitted to continue in the honourable profession to which he has been admitted.

I regret to say that I see in the facts of this case no grounds for confining my order to suspension. As I have said I can see no facts which mitigate the offence. In coming to this conclusion I am guided also by the case of Macauley v. Judges of the Supreme Court of Sierra Leone (1928) A. C. at page 344 from which I take the following extract:-

"Their Lordships appreciate the necessity in a country so described of inducing the inhabitants to resort to the courts for the settlement of their disputes rather than to the possibly more familiar means of personal violence. For this purpose it is essential that the people should be brought to feel the greatest respect not only for the impartiality and independence of the tribunals, but for the honesty and fairness of those who practice before them. To use the Chief Justice's words, the circumstances disclose 'a disgraceful combination of rapacity and dishonesty', and their Lordships feel that if they were to recommend a mitigation of the sentence in this case they would be dealing a serious blow at the authority of the Judge entrusted by law with the discipline of the profession in the Colony."

I therefore order that the name of B. J. S. be struck off the Roll of Advocates of this Court.