Attorney fails in attempt to overturn misconduct ruling

Attorney-at-law Lisamae Gordon, who was found guilty of professional misconduct over her handling of a botched land transaction and handed a six-month suspension, has lost her appeal to overturn the guilty finding and suspension.

Gordon faced the Disciplinary Committee of the General Legal Council (GLC) in 2020, over her failure to conduct a title search in a land transaction, which resulted in the purchasers losing US$35,000, which they had paid towards the sale before discovering that a caveat had been placed on the property, preventing its sale.

Gordon had been retained by Howard Jobson, the son of the property owner, though the couple involved in the transaction claimed that she had agreed to act as their legal representative in the sale of a property in Orange Grove, Trelawny, in 2014.

However, the deal fell through and the complainants were unable to recover their funds, leading them to file a formal complaint against Gordon.

In November 2022, the Disciplinary Committee found Gordon guilty of professional misconduct, resulting in her suspension and a fine. The committee determined that Gordon had failed in her duties to the purchasers, despite not formally representing them. It stated that she “acted in a manner contrary to the interests of the purchasers and inevitably to their detriment, while simultaneously facilitating the vendor to be unjustly enriched”.

The committee emphasised that, in transactions where money is to be paid to the vendor, the attorney handling the sale must have the consent of the purchasers and ensure that the money can be refunded if the transaction fails.

Gordon appealed the decision, arguing that the committee had erred both in its factual findings and in its interpretation of the law. She contended that she had not derived any financial benefits from the funds paid by the complainants and denied any legal responsibility to them, asserting that she had neither been retained by them nor paid to perform any duties. Gordon further argued that she had not assumed any responsibility toward the complainants as purchasers and was not responsible for refunding any money.

However, the Court of Appeal panel of Justices Marcia Dunbar Green, Vivene Harris, and Frank Williams upheld the committee’s decision in a ruling delivered last Friday.

The panel stated that there was no merit in Gordon’s appeal, emphasising that the committee’s finding of professional misconduct and “inexcusable and deplorable negligence” was not “unmistakably or palpably wrong”.

The court also affirmed the penalty imposed on Gordon, noting that the six-month suspension and the $35,000 fine were appropriate, given the circumstances.

In addition to the suspension and fine, the judges also affirmed the order for Gordon to pay $200,000 in legal costs.

No collusion

Gordon’s lawyer, Stephanie Williams, had argued that her actions did not amount to professional misconduct, since they were inconsistent with previous rulings on “inexcusable or deplorable negligence” as there was no finding of collusion between her client and the vendor or agent.

She contended further that Gordon had acted on a copy of a title that did not have irregularities or defects, and as such, should not be considered negligent.

Furthermore, it was argued that Gordon had acted based on the couple’s instructions to pay over the money to Jobson, and that mere carelessness or recklessness was insufficient to ground a finding of “inexcusable or deplorable negligence” or neglect.

Additionally, she said the committee’s imposition of a duty of care on the appellant was inconsistent with the principle that, in normal conveyancing transactions, the solicitor acting for the seller does not owe a buyer a duty of care when answering queries before contract.

She argued that it has been long established in practice in conveyancing matters “that it is the purchaser’s duty to investigate title, so imposing that duty on the appellant runs counter to the authorities, except for exceptional circumstances when an attorney steps outside of his role as an attorney for the vendor and accepts direct responsibility to the purchaser”.

King’s Counsel Patrick Foster, who represented the GLC in the High Court, argued that while an attorney who acts for a seller has no general duty of care to a buyer in relation to title or other issues, there are situations in which a duty of care can arise.

“A duty may arise where the circumstances justify responsibility, on the principle that persons exercising a particular skill or profession may owe a duty of care to people who, it can be foreseen, will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care,” he explained. Foster also argued that professional negligence is not possible in contractual or client-customer relationship, but anyone who has been aggrieved, depending on the nature and proximity of their relationship.“The duty owed to the complainants, King’s Counsel argued, was based on clear evidence that established a sufficient relationship of proximity with the appellant,” the judgment said, with Foster pointing out that Gordon had spoken directly with one of the purchasers in respect to the first sale agreement.

Duty of care

The Court of Appeal judges agreed, too, that an attorney in a conveyancing transaction does not normally owe a duty of care to anyone but his own client. However, they said that the committee finding that Gordon owed the complainant a duty of care was based on the nature of the transaction and the appellant’s obligations under the sale agreements.

“This was not normal conveyancing, in the sense of an arm’s-length transaction in which each party had separate legal representation. The appellant took all material instructions either from Mr Jobson, a non-owner, or the complainants.

Her conversations about the transaction were exclusively with Mr Jobson and the complainants. There was no evidence of any conversation with the vendor by the complainants or the appellant. It was also not proven what ‘title’ the appellant relied on, since the title she claimed to have been given by Mr Jobson was not exhibited,” Dunbar Green said.

The judge also pointed to the fact that the third sale agreement carried Jobson’s name as “vendor”, yet an examination of the copy title exhibited did not show that he had any interest in the property, nor was there any evidence that Jobson was to act as vendor’s agent.

Additionally, the judge noted in the judgment, “It seems an elementary step, therefore, as learned King’s Counsel put it, that in drafting the sale agreements, the appellant would have acquired a current title report. This would have ensured that the sale was not restricted, and it would not have conflicted with her duty to the vendor.

“Further, in my view, any competent attorney would have needed to be satisfied, at the very least, about the ownership of the property, more so in circumstances where he or she was supposedly handed a copy title by a non-owner of property intended for sale,” she added.

In the meantime, Foster and his colleague, Mark Park Cowan, who both represented the GLC and were instructed by the law firm Nunes, Scholefield, DeLeon & Co, said that the decision is very important, especially for real estate lawyers, as it has brought more clarification on the legal obligation of an attorney-at-law who acts for a vendor and has carriage of sale in a real estate transaction.

“The judgment was the product of careful consideration by the panel and is an important read for conveyancers and law students in Jamaica on the obligations that may be imposed on an attorney with carriage of sale in a land transaction.

“It is also a notable addition to our jurisprudence as the Court of Appeal recognised that an attorney acting for a vendor can be fixed with a tortious duty of care with respect to an unrepresented purchaser,” Cowan said.

He added, “Attorneys must therefore tread cautiously in their dealings with unrepresented parties so as to not create unintended liabilities to persons who are not their clients.”

tanesha.mundle@gleanerjm.com