SEENATH RETURNS CLICO BRIEF...TONEY TOO
By Jada Loutoo Friday, October 19 2012
FOUR days before the resumption of the commission of enquiry into the failure of collapsed insurance giant Clico and the Hindu Credit Union (HCU), lead counsel for the Ministry of Finance Seenath Jairam, SC, has returned his brief.
Also giving up the coveted State brief was Congress of the People (COP) chairman Joseph Toney.
In a statement, Jairam said his decision was prompted by the public’s perception that as Law Association president he should not have accepted the brief from the ministry.
“I am satisfied that I breached no ethical or professional standards by accepting the brief from the Ministry of Finance, but given the public perception as manifested in the media, I consider that as president of the Law Association I should lead by example and therefore return the brief,” he said.
However, Jairam came in for stinging criticism from former Law Association president Karl Hudson-Phillips, who, in a letter to Jairam yesterday, accused him of “conduct short of the best traditions of the Bar” for accepting the State brief in the first place. Jairam was hired as lead counsel for the ministry along with Toney and Jagdeo Singh as junior counsel, 12 days ago, after the previous team of Fyard Hosein, SC, and Michael Quamina were fired on October 5, via e-mail.
Singh will remain as junior counsel to the commission and Newsday understands that the ministry is looking at retaining British Queen’s Counsel Vincent Nelson, who represents the State in its lawsuit against former Eteck president Ken Julien and five former directors.
In an interview with Newsday, Toney said his decision to return the brief was due to the “discomfort” it was causing him as chairman of the COP.
“I didn’t want mixed signals as to where my loyalty lies,” he said.
“As a public figure of more than three decades, my integrity has never been questioned and when people begin to question my integrity I get uncomfortable,” he said.
Efforts to reach Finance Minister Larry Howai proved futile while Attorney General Anand Ramlogan, when contacted, said he knew little on the issue as he was in Cabinet all day and would have to speak with Howai.
For his part, Hosein said he had no comment to make on the issue, neither did Quamina.
Newsday had reported that the firing of Hosein and Quamina had raised concerns in the legal fraternity, especially since no reason was given for their dismissals. Hosein and Quamina were retained to represent the Finance Ministry in May last year.
Sources told Newsday, that Howai, after assuming office as Finance Minister, felt uncomfortable with the two men continuing to represent the ministry since they had given legal advice on the Memorandum of Understanding former finance ministe, Karen Nunez-Tesheira signed with Clico’s executive chairman Lawrence Duprey as part of the bail-out plan for the cash-strapped insurance company.
The enquiry, which began in July 2011, has been going on for over a year and is due to be completed next May. It resumes on Monday, with evidence being taken on HCU. Evidence hearings for Clico will recommence on October 25 and subsequent hearings will be held in December and February, March, April and May of next year.
Jairam yesterday noted that after communicating with his colleagues from whom he was taking over his acceptance of the brief, in light of public comments on the issue, he consulted with his colleagues at the Bar.
He said he was told that there was no good reason for him to return the brief. “Notwithstanding these assurances it has become abundantly clear that my continued acting as counsel for the Ministry of Finance will reflect upon my position as president of the Law Association. It is neither my wish nor desire to even remotely embroil the Law Association, an independent democratic body, in any conflict which may have its roots in political partisanship,” he said.
Jairam noted that past presidents of the Law Association as well as members of the council have accepted briefs from various governments without public complaint.
“For my part, in this instance, I feel a moral obligation to subordinate my own professional interest to the interests of the Law Association and have decided to return a challenging brief,” he said. Jairam also noted that all clients were entitled to terminate the services/retainers of their attorneys at any stage of the engagement or retainer and to replace them with new attorneys of their choice.
“This is an integral feature of the client’s right to counsel and is no reflection on the competence or professionalism of the attorneys either removed or newly appointed,” he said. But even as Jairam returned the now-controversial brief, he came in for scathing condemnation from Hudson-Phillips, who, in yesterday’s letter to Jairam, accused him of “scabbing” by accepting the State brief which a fellow attorney held.
Hudson-Phillips acknowledged that Jairam had called him, soliciting support for his candidacy during the Law Association’s elections in June, but said he could not do so.
“I told you then, and I repeat it now, that I could not support you because I did not have confidence that your motivation was purely to advance the standing of the profession in Trinidad and Tobago,” Hudson-Phillips said.
“I think I put it more crudely and accused you of putting yourself forward only to ingratiate yourself with the Executive to get briefs,” he said in his letter.
Hudson-Phillips said he also found it “very disturbing” that the only communication Jairam had with Hosein was on October 8, when he indicated that he accepted the Finance Ministry brief.
“Nobody questions the undoubted right of any client to ‘hire and fire’ attorneys. But attorneys are under no obligation to accept briefs in circumstances which violate existing rules of professional conduct and the duties of one attorney to another in keeping with the traditions of our once noble profession,” the senior attorney said as he quoted Clause 48 and 52 of the Legal Profession’s Code of Ethics.
Hudson-Phillips told Jairam that the Finance Ministry brief concerned an appearance before a commission of enquiry and not a court of law made no difference.
“The spirit of the rule is that you should not accept instructions to appear before speaking to an attorney whom you know has been previously briefed in the matter,” he said.
Jairam, on October 4, returned a brief as one of a battery of attorneys representing the interests of Clico EFPA policyholders Percy Farrell, Marina Inalsingh, Prof Gordon Rohlehr, David Dayal and Michael Alexander, which challenged the legality of Government’s bailout plan.
Jairam maintained his involvement in the matter was purely for the constitutional aspect and not the substantive issues.
But Hudson-Phillips said it was a question of common professional courtesy and prudence.
“A client may be exercising his or her right to fire counsel, but this may be for reasons which are unacceptable to the legal profession. In such a case, counsel should refuse to accept a brief to replace a colleague. Attorneys are under no obligation to accept all briefs regardless of the circumstances surrounding the matter. It is not a question of entitlement to work (“eat a food”) as one of your juniors is reported as stating or of professional competence to do the legal work involved,” the Queen’s Counsel told his colleague.
According to Hudson-Phillips, also a former attorney general, there was a rule for the protection of “fellow colleagues in the profession to whom a special and very high duty is owed.”
“Your conduct as president of the Law Association can be likened to that of the president of a trade union who accepts a vacancy caused by the lock out of a member of his union by an employer. That is called “scabbing,” he said in his scathing letter.
Hudson-Phillips added that it was also offensive to the Attorney General.
“This is also offensive to the Attorney General against whom you appeared in the Court of Appeal and who is responsible for organising legal representation for the State including the Minister of Finance,” he said.
He said for Jairam to say there was no conflict in him switching from representing the policyholders to representing the Finance Minister, demonstrated “ an alarming and crass lack of knowledge and sensitivity by the president of the Law Association of Trinidad and Tobago as to what is a conflict of interest.”
“Indeed, if in fact there was no conflict of interest there was absolutely no justification in your returning the brief and thereby abandoning the client.”
Hudson-Phillips also accused Jairam of attending a conference on October 12, days after he accepted the Finance Ministry’s brief, with the Farrell group to discuss issues arising out of the appeal.
“If that is true, how do you reconcile continuing to be involved in that matter while accepting a brief from the Minister of Finance in the Clico enquiry,” Hudson-Phillips enquired.
“I fear that you have done irreparable damage to the Law Association of Trinidad and Tobago and to the legal profession. As president you have failed to demonstrate an adherence, not to the highest, but to the most basic principles of professional etiquette and conduct of the Bar. You have failed the association and the profession.
“You have also done a grave disservice to the Hugh Wooding Law School of which you proudly declared in the Trinidad Guardian that you are among the first of its students to receive Silk,” he concluded. Jairam, when contacted chose not to speak on his decision to return brief, but instead issued the e-mailed statement.