Justice Sukul’s disbarment raises many questions

Mar 18, 2014 Letters

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DEAR EDITOR,
The recent resignation of Mr. Rabi Sukul, a UK trained and admitted Barrister, as a Judge of the Guyana Court of Appeal, was viewed with great concern by many of us in the Guyanese diaspora in North America.
The obvious question was: what could possibly cause his untimely judicial demise so soon after he mounted the appellate bench. After all, the man “strived so hard and for so long to … return to [his] homeland”! (his words).
While it appears that Mr. Sukul’s resignation resulted from a request by Chancellor Carl Singh following the former Judge’s disbarment in England where he practiced law prior to his appointment, of greater interest to the legal mind and judicially minded is the process by which this English Barrister got himself appointed to the nation’s highest appellate court.
Mr. Sukul, whose disbarment has since been suspended pending the outcome of his appeal, advised the local press that he was targeted by a hostile British Court Registrar and the Bar Council “with a view to ending his career on the bench” and blamed an English solicitor, known to him, for filing, without his knowledge, draft grounds of appeal which he admittedly prepared but which he originally advised were non-existent. This lawyer claims that as a consequence of the unauthorized filing of the aforesaid draft grounds of appeal, he was ultimately “disbarred in his absence, meaning he was unrepresented” (Stabroek News: 19/02/14)
Respectfully, this contention lacks credence and/or logics. It certainly strains the legal mind to accept this argument as no lawyer becomes disbarable, simpliciter, for the filing of draft grounds of appeal: nor is a lawyer guilty of professional misconduct for making procedural errors in so filing e.g. for lack of perfection of the appeal.
There may, however, be cases in which “filed grounds” could lead to serious disciplinary action against counsel. e.g. where the grounds filed are so egregious in that they are factually distorted, non-existent and effectively misleading such that they would bring the administration of justice into disrepute.
In his disclosures to Stabroek News (19/02/14) , Mr. Sukul states that he advised the solicitor involved in the case that he did not identify any obvious grounds of appeal, yet upon request by said solicitor, three months later, he proceeded to draft “two possible grounds of appeal” which were “genuine and lawful”.
Why were they ever drafted if no appeal was intended or instructed? Why were the grounds filed without Mr. Sukul’s permission or knowledge? Did the solicitor require counsel’s permission at that stage or could the solicitor perfect the filing of the appeal without the Barrister who unsuccessfully represented the client at trial?
While these questions remain unanswered, the former judge’s explanations themselves raise a number of red flags.
Mr. Sukul admits that he received two letters from a case officer from the Court of Appeal re: information relating to the two grounds of appeal, presumably the very ones that he drafted. And what did learned counsel do? Did he respond? No! He refused or failed to do so on the basis that “wrongly and to my peril, I did not respond to those letters because I knew that I had not submitted any document to the Court of Appeal”.
As if this was not sufficient disrespect to the Court, Mr. Sukul was, on a Judge’s direction, offered to be provided with the transcripts in order to perfect the appeal, but said offer was equally refused upon the rationale that: “It is a major, and possibly significant procedural irregularity for a judge of the Court of Appeal to give directions to perfect the two draft grounds submitted not by trial counsel but by the solicitor, three months after the deadline had passed …”
As a lawyer, one is tempted to ask why did Mr. Sukul not avail himself of the opportunities presented to him thus far to explain his non-involvement in the matter. He refused to attend before the judge who issued directions and further refused to follow those directions on the argument that the judge was procedurally wrong.
Meanwhile, the Court of Appeal was without any knowledge that Mr. Sukul was uninvolved in the Appeal before it. He was otherwise occupied disobeying official enquires and recommendations! I pause to think how would Sukul JA react toward an equally erring lawyer in circumstances akin to his own case.
Mr. Sukul blamed a number of officials and Tribunals, as well as the British justice system, a colleague, the Registrar and the Court of Appeal for his plight, but significantly ignored his own deliberate and wrongful actions which eventually led to his disbarment. Not only did he refuse/fail to respond to communications and directions from the Court, he was actually called in to explain his professional inadequacies which he apparently flunked.
Need anyone remind him that failure/refusal to respond to communications from the court constitutes professional misconduct? Undoubtedly this gentleman was the author of his own misfortune as he rationalised ex post facto.
“It is a great travesty that I did not respond timely to the Registrar’s offer…all I needed to do was to remind the Court of Appeal that I had not submitted the grounds of appeal, and in any event, I have no instructions from the Solicitor nor client to pursue an appeal…If I had done so I would not have been disbarred today”. The question is why didn’t he!
The practice of law in England and indeed in many common law jurisdictions is governed by regulatory bodies established under enabling legislation. These regulatory institutions establish rules of professional conduct which must be maintained by every member of the bar. Violation of any such rules or codes of conduct leads to disciplinary proceedings against the defaulting member and penalties range from reprimand to disbarment.
Professional Conduct rules require, inter alia, that lawyers must at all times conduct themselves in a professional and principled manner, must act with civility toward others and be respectful to the court: respect, in this regard, includes an obligation to respond, on a timely basis, to all communications from the Court. By the very nature of their profession, lawyers are required not to knowingly do, or cause to be done, anything that may bring the administration of justice into disrepute: and “knowingly” is determined on a standard of reasonableness!
Reading his side of the story (and we only know the other side’s from Mr. Sukul) one gets the impression that the former judge may have been somewhat brash in his dealings with the authorities. Media reports indicate that Mr. Sukul had practiced law in England for 25 years prior to the instant case and he had never had a complaint upheld against him during those years.
Given his practice record, he ought to have known that his actions, in the circumstances, would not satisfy the required professional standards of a barrister, acting reasonably, and consequently became the subject of a conduct hearing leading to his disbarment.
Whether or not Mr. Sukul’s actions warranted disbarment or lesser discipline or none at all would hopefully be determined at his appeal if same were heard on its merits. If not, we would probably never know.
Unlike the view of Peeping Tom, a KN columnist, and others, it is not correct to hold that Mr. Sukul was disbarred for filing unmeritorious grounds of appeal. He became the subject of a conduct hearing as a result of a complaint by the Registrar. The complaint was heard by the Bar Council and, rightly or wrongly, he was found guilty of professional misconduct and ordered disbarred.
That said, I lay no blame on the powers that be for the appointment of this English Barrister to our appellate Court. Neither the JSC nor the Executive must be faulted for his appointment. Indeed, the Government had nothing to do with it. Mr. Sukul was sworn in by the President pursuant to his constitutional powers upon recommendation by the JSC.
Mr. Sukul, however, must take total responsibility for this embarrassment. He had a professional obligation to disclose the fact that he was under active investigation and was the subject of a conduct hearing immediately prior to his appointment, but he chose otherwise.
In the circumstances, I am of the respectful view that Rabi Sukul’s failure to so advise the Chancellor or the Judicial Service Commission is an act of professional dishonesty which disqualifies him for the position of Justice of Appeal or any other judicial office.
Had he done the honourable thing and made full disclosures of the Bar Council’s pending conduct hearing against him, he might not have been the subject of Breaking News!
The Sukul fiasco does not necessarily require any significant changes to the appointment process of puisne and appeal judges. Our Constitution provides an adequate framework for such tasks. What is really needed is the establishment of a proper selection and appointment mechanism through which an applicant’s personal status and professional history could be judiciously scrutinized.
At the very least, a letter of good standing should be obtained directly from the regulatory body of the applicant’s practice jurisdiction in the case of external candidates — Bar Council, Law Society, Bar Association etc. Letters of standing usually cover such factors as qualifications, year of call, areas of practice, discipline, accolades, suspensions, reprimands, fines, pending investigation/conduct hearing, bankruptcies etc.
The JSC has the constitutional mandate to appoint our judges. However, it needs to get out of its slumber and actively pursue its responsibility to ensure that judicial positions are filled by legal professionals of unquestionable conduct and integrity.
Kaisree S. Chatarpaul
Barrister, Solicitor, Notary Public: Toronto, Canada

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