Home | Databases | WorldLII | Search | Feedback Fiji Independent Legal Services Commission

Chief Registrar v Ligabalavu [2013] FJILSC 5; 007.2012 (7 June 2013)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION

NO. 007 OF 2012

BETWEEN:

CHIEF REGISTRAR
Applicant

AND:

MELAIA LIGABALAVU
1st Respondent

LUSEYANE LIGABALAVU
2nd Respondent

Applicant : Mr. A. Chand
Respondent : Ms M Drova for the 1st Respondent
Mr A Naco for the 2nd Respondent

Dates of Hearing : 12th April and 30th April 2013
Date of Judgment : 7th June 2013

JUDGMENT and SENTENCE

1. The 1st Respondent faces 4 charges before the Commission, two charges of unsatisfactory professional conduct in that;
   

   "she appeared in the Suva Magistrates' Court on two occasions in a matter when she was not the holder of a valid Practicing Certificate, thereby contravening the provisions of section 52(1)(a) of the Legal Practitioners Decree 2009 ("the Decree") and a further two charges of professional misconduct in that when making her two afore-mentioned appearances in the Suva Magistrates' Court she appeared on behalf of a law firm which was not entitled to practise law, the principal and sole proprietor not being the holder of a valid Practising Certificate; this conduct being in contravention of the provisions of section 42(2) of the Decree."

2. The 2nd Respondent faces four charges of professional misconduct;
   

   "the first two (connected to the charges referred to in paragraph 1 (supra)), in that not being the holder of a valid Practising Certificate, and practising as "Ligabalavu Law" she employed and instructed the 1st Respondent to appear in the Magistrates Court on two occasions when she (the second Respondent) was not entitled to operate in the practice of law; thereby contravening the provisions of section 42(2) of the Decree. The second Respondent faces two further charges of professional misconduct in that she failed to keep proper trust account records for the year October 2010 to September 2011and that she failed to supply to the Registrar and the Minister of Justice a trustee's statement for that period, both omissions being in contravention of her professional requirements under the Trust Accounts Act 1996."

3. Both Respondents entered guilty pleas to all charges on the 30th of April 2013.
   

   FACTS

4. The 1st Respondent and 2nd Respondent are daughter and mother respectively. They share culpability in the charges relating to the 1st Respondent appearing in court on behalf of the unlicensed law firm "Ligabalavu Law", while the 1st Respondent has two discrete charges relating to her own appearance without a practising certificate and the 2nd Respondent has two discrete charges relating to her failure to keep and report on a proper trust account.
   
5. In March 2012, the 2nd Respondent purported to operate a law practice, styled "Ligabalavu Law" where she employed the 1st Respondent as an associate. Neither party had a practising certificate at the time. On the 1st and 19th of March the 2nd Respondent instructed the 1st Respondent to appear in the Suva Magistrates' Court in civil proceedings (Adi Aqela Naulumatua v Matayasi Takayawa )when the 1st Respondent did not have a practising certificate.
   
6. The 2nd Respondent was the principal and sole practitioner of "Ligabalavu Law" at the relevant time, and did not have a current practising certificate. In addition to instructing the 1st Respondent to appear in court on behalf of the firm; the firm did not at a time when licensed in 2011 provide an audit report of the firm's trust account to the Registrar or to the Minister.
   

   MITIGATION

7. The 1st Respondent claims to have been told by an officer of the Legal Practitioners' Unit within the Chief Registrar's Office that she was at liberty to make appearances in Court in March 2012 while awaiting the processing of her new practising certificate. She adds that the appearances were not for personal gain but merely appearances to assist her mother in her struggling law practice.
   
8. She is 31 years of age and a practitioner who is junior in call. She has recently secured employment as an associate Solicitor with another sole practitioner in Suva. She claims to be remorseful and states that she has co-operated in the investigation of this conduct and entered a plea at a very early stage to the first two counts. She entered a plea later in respect of the third and fourth counts after seeking legal advice.
   
9. The 2nd Respondent is aged 57 and is a widow supporting her three children. She came to legal practice at a late stage after a career in the Civil Service. She claims to have struggled in the unexpected responsibilities of operating a professional practice. She submits through her counsel that in instructing her daughter to appear in court, she was merely "facilitating the process of her client "and ensuring that that client was not disadvantaged. She says that since that time she ceased her practice and given no further instructions to anyone to appear in Court. She says that she is very remorseful although that claim Wasserstein not evidenced by her demeanour before the Commission.
   
10. The 2nd Respondent claims that no member of the public has been prejudiced by her actions. In respect of the 7th and 8th counts relating to her failure to provide proper records of her Trust Account she claims to have been frustrated in her duties in respect of these reports by errors made within her bank when the trust account was opened; errors which were not rectified by the bank until 19th March 2012.
    

    ANALYSIS

11. The 1st Respondent's claim that she was told by an officer of the Legal Practitioners' Unit that she could appear in Court while her certificate was being processed is not borne out by the fact that she had never applied for a certificate for that current year until 10th of May 2012, a certificate being granted to her on 20th of June 2012. Such an untruthful claim in mitigation does not assist a practitioner when penalties for breach are being considered. Had she merely submitted that she was trying to assist her mother to resolve one of her client's matters in Court without resorting to falsehood before this Commission perhaps a more generous view may have been taken of her culpability. She is a reasonably young practitioner and very junior in call and the usual penalty in these circumstances is a public reprimand and a modest fine. Appearing in Court without a practising certificate is a very serious offence, which can only be mitigated by inexperience and a lack of intention to deceive.
    
12. The 1st Respondent is inexperienced and while she may not have sought to deceive the Suva Magistrates Court, she certainly doubt to deceive this Commission by a mendacious submission. In view of her dishonesty before this Commission and for her singular lack of remorse, the practitioner will be suspended from practice for the rest of this current practising year and she will not be eligible to apply for a practising certificate until 1st of March, 2014. In addition she is to be publicly reprimanded.
    
13. The 2nd Respondent's claim that her bankers had applied an erroneous "coding" to her trust account does not assist her in the allegations of failure to report on that account. Her claim that this error prevented the bank from providing her with an "Audit Certificate" shows a distinct misunderstanding of Trust Account requirements. It is not for the bank to provide the audit certificate, but her own accountants or auditors. Even if the bank had applied the wrong code to her trust account (and evidence has been furnished that it did) there is no evidence that the 2nd Respondent knew that at the time. It would not then prevent her from treating that account as her trust account and complying with the necessary requirements of the Trust Accounts Act 1996.
    
14. The 2nd Respondent has appeared before this Commission before [Applications Nos. 3 and 4 of 2012], when the charges against her were found to be established and she was suspended from practice until 1st March 2015. Her counsel now submits that these offences were committed at the same time as the earlier offences and any penalty to be imposed on his client should be made concurrent to the penalty imposed in the earlier complaints.
    
15. Such a submission is misconceived. This Commission looks at separate instances of offending in its role to regulate the profession and to protect the consumer public. Any offences of a similar kind and committed within the same time frame may well be regarded as contemporaneous and consequently concurrent however these offences are not. The earlier offences were established allegations of ignoring orders of the Chief Registrar to attend mediation and to carry out subsequent orders as a result of mediation and these offences are quite distinct and separate.
    
16. Given the 2nd Respondent's continued offending and offending over a wide range of professional obligations, her capacity as a fit and proper person to practise the profession is called into question. If she is found to be not a fit and proper person to practise, then her name would be removed from the Roll of Practitioners. The Commission has given much thought as to whether to invoke such a harsh penalty on the practitioner.
    
17. The 2nd Respondent's failures on all four of these allegations found established show a distinct lack of organisation and professional acumen rather than dishonesty and deceit. It is suspected that she may be a little out of her depth in managing her own practice.
    
18. In the premises the 2nd Respondent's practising Certificate which has been suspended until 1st of March, 2015 will be suspended for a further two years until 1st of March, 2017.
    

ORDERS

1. The 1st Respondent is publicly reprimanded.
   
2. That the 1st Respondent be suspended from practice for the rest of this current practising year and not be eligible to apply for a practising certificate until 1st of March, 2014.
   
3. The 2nd Respondent is to be suspended from practice for a period of two years. Those years are to run consecutively to the period of suspension she is already undergoing. This means that the 2nd Respondent can not apply for a practising certificate to practice until 1st of March, 2017.
   

7th JUNE 2013

JUSTICE PAUL MADIGAN
COMMISSIONER