The General Legal Council (GLC) on Thursday lost its bid to persuade the Judicial Committee of the Privy Council that Jamaica’s Appeal Court should not have interfered with the decision of its disciplinary committee to strike Michael Lorne from the roll of attorneys entitled to practice in Jamaica for professional misconduct over his handling of a transaction dating back to October 2002.

The sanction followed a finding of professional misconduct against Lorne for failure to account to a client for her share of the proceeds of sale of a property at 10 Fairbourne Road, Kingston, Jamaica, which was jointly owned by herself and her brother. As part of the sanction imposed for this professional misconduct, Lorne was struck off the Roll of Attorneys-at-law entitled to practise in Jamaica in 2017.

Lorne, who was admitted to practice at the Jamaican Bar in 1979, initially challenged both the finding of professional misconduct and the sanction on appeal to the Court of Appeal. However, at the hearing he limited his appeal to the severity of the sanction of striking off. The Court of Appeal allowed his appeal against sanction, set aside the striking off order and substituted a sanction of suspension from practice for five years combined with compulsory attendance at additional continuing legal professional development (CLPD) courses. The GLC appealed that decision.

On Thursday the Privy Council, in handing down its ruling, said Lorne has obtained the needed CLPD credits and served the period of suspension from practice in full.

The board had been asked to determine whether the sanction imposed by the committee, striking Lorne from the Roll of Attorneys-at-law entitled to practise law in Jamaica, “was unquestionably an error of law or clearly inappropriate, unnecessary in the public interest, disproportionate or excessive to warrant the intervention of the Court of Appeal in setting aside the order and imposing a lesser sanction”.

It was further asked to say whether, in the circumstances of the case, the Court of Appeal ought to have deferred to the decision of the committee, as an expert and informed tribunal, to determine the measures required to deal with the defaulting attorney-at-law and to protect the public interest.

The board, in handing down its ruling for the appeal which was heard in February this year, said it “has concluded that the Court of Appeal was entitled to interfere with the decision of the committee as to the appropriate sanction and to substitute its own judgment”.

In further answer to the two questions it was asked to pronounce on it said, “The sanction imposed by the committee was the consequence of an error of law as the Court of Appeal inferred and that error entitled the Court of Appeal to substitute its own assessment as to the correct sanction.”

“As the Court of Appeal identified an error of law in the committee’s reasoning, it was entitled to interfere and determine for itself the needed sanction. There was not otherwise a basis for interfering with the committee’s determination on the ground that the sanction was disproportionate. The board will humbly advise His Majesty that the appeal should be dismissed,” the Privy Council said.

In the meantime, in assessing the circumstance the Privy Council judges were at pains to point out that “this was a case of very serious professional misconduct which, depending upon the evaluation of the facts by a disciplinary committee, could justify either a striking off or a significant suspension from practice”.

It however said, “In such circumstances, it was incumbent on the [disciplinary] committee to explain what it was in this case that warranted a striking off rather than a lesser sanction and it did not do so. Instead, its reasons were essentially a description of the conduct as egregious, but no more.”

It further pinpointed two two aspects of the reasoning of the Court of Appeal with which it disagrees.

“In its judgment the Court of Appeal spoke of Mr Lorne’s naïvete and lack of experience and familiarity with conveyancing and probate. There was no evidence recorded in the committee’s decision to support this view; it was contradicted by Mr Lorne’s own evidence; and it ignores the context that he knew that he owed his clients fiduciary duties and that each was entitled to an equal share of the proceeds,” the Privy Council noted.

Secondly, it said, “There was no proper basis for treating Mr Lorne’s payment of the sums due as a significant mitigating factor.”

“His failure to honour his undertaking to pay in April 2014 for three years until the eve of the hearing in mitigation compounded the seriousness of his professional lapses,” the Privy Council said.