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'Etika v Tonga Law Society [2002] TongaLawRp 12; [2002] Tonga LR 75 (2 April 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 04/2001

'Etika

v

Tonga Law Society

Ford J
1 March 2002; 2 April 2002

Law practitioners – conflict of interest – not necessarily professional misconduct
Law practitioners – disciplinary tribunal - professional misconduct – high standard of proof needed

In 1996 the appellant, a law practitioner, was retained by the complainant to bring a civil action against Koto Heavy Duty Co Ltd ("Koto"). It was alleged that, while carrying out coral quarrying work on the complainant's tax allotment pursuant to an agreement Koto had with the complainant, the company had removed top soil and a large mango tree without permission. On the day of the trial the case was adjourned sine die to allow the complainant to amend his statement of claim to overcome a problem that the judge pointed out. Thereafter nothing further happened despite the fact that the complainant called on the appellant on numerous occasions to check progress with the amended statement of claim. The complainant lodged a complaint with the Law Society alleging that the appellant had, subsequent to the aborted trial, become counsel for Koto without his knowledge or consent. The appellant denied that he had ever acted as counsel for Koto but he admitted that for the period between October 1997 and January 1998 he acted for a Mr Seong, the managing director of Koto. The appellant held a full power of attorney to act for and on behalf of Mr Seong while he was out of the Kingdom visiting Korea during that three-month period. On 28 November 2000, the Disciplinary Committee of the Law Society found that the appellant had a conflict of interest during part of the period that he was acting for the complainant back in 1996/97. The Committee concluded that the appellant should be disciplined and recommended to the Chief Justice that the practitioner's practising certificate be suspended for 3 months and that he pay costs of $300 to the Law Society. The appellant appealed that decision.

Held:

1. It was not sufficient for the Committee to investigate and conclude that the complaint had been proved or that it had substance; it must go further and determine whether or not the practitioner was guilty of "professional misconduct". No such finding was made by the Committee.

2. The standard of proof required for a serious charge like professional misconduct, which could result in a practitioner being struck off the Roll or suspended, was a high standard of proof based upon convincing evidence.