Maravi

LAZ fines Sangwa, Simeza for professional misconduct

LAZ fines Sangwa, Simeza for professional misconduct
By Patson Chilemba
Sun 21 Feb. 2010, 04:02 CAT

THE Law Association of Zambia (LAZ) disciplinary committee has established professional misconduct on the part of Lusaka lawyers John Sangwa and Robert Simeza and ordered each respondent to pay 100,000 penalty units about K18 million within 30 days.

This is according to a ruling in the matter of Chimbeka Sakala and in the matter of Sangwa and Simeza delivered by the LAZ disciplinary committee on October 21, 2009. Joan Irvin was the complainant, with Simeza and Sangwa being the first and second respondents respectively.

Facts of the matter were that a complaint was made to the disciplinary committee of LAZ on April 6, 2004 against the practitioners by the complainant of professional misconduct.

The complaint was heard by the committee on February 2, 2008 and April 10, 2008 and counsel Fraser Chishimba represented the Legal Practitioners Committee while Vincent Malambo, SC, represented the practitioners and both the complainant and the practitioners gave evidence on oath.

The application before the committee was that Sangwa and Simeza be struck off the roll of practitioners for alleged professional misconduct.

According to the affidavit and further affidavit both sworn on April 6, 2004 and filed in support of this complaint, the reasons for the applications could be summarized as follows:-

“(i) The two practitioners now practicing under the style and name of Simeze Sangwa and Associates, while working as associates at Messrs. R.M.A Chongwe and Company represented the complainant between the years 1991 and 1993 as a client of that firm. (ii) That in the process of acting for the complainant Mr. Robert Mbonani Simeza on 17th January, 1992 filed into court an application for a vesting order relating to the following properties:- a) Game Farm No. 4678 Lusaka, b) Game Farm No. 4242 Lusaka, c) Main house namely subdivision 9 of Subdivision B of Farm Number 452a in extent 50 acres,” the committee stated.

The said summons for a vesting order was supported by an affidavit sworn and signed by Simeza as an advocate in the firm of Messrs R.M.A Chongwe and Company seized with the matter.

The properties in question were originally owned by Leopard Investment Company Limited in which both Oliver John Irwin the complainant's former husband, and the complainant were originally the only shareholders, but later Jolyon Oliver Irwin the son of Oliver John Irwin became another shareholder.

The committee stated that Oliver John Irwin held the majority shareholding and the three were able to decide for the company.

There were later preference shareholders but these did not possess any voting rights.

“(e) That both practitioners took and accepted instructions from Leopard Investment Company Limited and commenced opposing and challenging the basis upon which the deputy registrar granted the Vesting Order that transferred and registered the properties into the complainant's name from Leopard Investment limited 10 years earlier in compliance with agreed settlement of property and maintenance order registered and sealed at the High Court on the 18th September 1990,” the affidavit stated in part.

“(f) That the said practitioners commencing from July 2001 as advocates now for Leopard Investment Company Limited challenged in different courts before different judges the complainant's ownership of the two game farms, the main house and the vesting order.

In addition, Mr John Peter Sangwa applied to the Director of Public Prosecutions and was granted a fiat to prosecute the complainant for allegedly forging a document to wit; and agreed settlement of property and maintenance Order that was presented to the registrar of Lands and Deeds to secure her registration as owner of the said properties.”

The affidavit stated that the two practitioners had successfully persuaded the registrar of Lands and Deeds to cancel the very title deeds they helped the complainant obtain to the properties that constituted her divorce settlement on the alleged ground that title thereto was procured by fraudulent means.
That in 2002, the practitioners commenced proceedings in cause Number 2002/HP/0997 in which they managed to take away the complainant's property, rendering her homeless.

The affidavit stated that there was very little interaction between the lawyers within the firm in the prosecutions of instructions on behalf of various clients.

The affidavit stated that during the time Sangwa was at Messrs R.M.A Chongwe and Company he never took instructions from the complainant, and never dealt with her personally nor did he have knowledge of the facts of her case.

The affidavit stated that the practitioners left Messrs R.M.A Chongwe and Company in 1993 and in 1994 set up their own firm under the style of Simeza, Sangwa and Associates, and that although both practitioners each had 50 per cent stake in the firm, they were each responsible for a number of clients.

The affidavit stated that in 2001, eight years after leaving Messrs R.M.A Chongwe and Company, Sangwa was consulted by officers of Leopard Investment Limited who wanted to know the legality of the agreement which had been signed by Oliver Irwin and the complainant Irwin as director and shareholder of Leopard Investment Limited committed himself, subject to certain conditions being fulfilled, to transfer certain assets of the company as part of the property settlement after divorce.

Sangwa later learnt that the agreement was prepared in 1989 before both practitioners had graduated from law school.

The matter was heard on February 29, 2008 and April 10, 2008 and the committee made the finding that the complainant was the client of R.M.A Chongwe during the period 1991 to 1993, and the firm handled her divorce and property settlement with her former husband Oliver Irwin.

The committee stated that the matter was handled at some point by Simeza who made an application to court in connection with a vesting order.

“Mr. John Sangwa never dealt with the complainant while at Messrs R.M.A Chongwe and Company,” the committee stated.

The committee stated that in 2001, eight years after leaving R.M.A Chongwe and Company, Sangwa was consulted by Leopard Investment Limited to know the legality of the agreement which had been signed by Irwin and the complainant.

The committee stated that instructions were accepted by Sangwa which culminated in the complainant being dispossessed of the property she received as a result of the vesting order and the files were transferred to Messrs. Malambo and Company.

“Rule 33(1) (f) and (g) of the Statutory Instrument No. 51 of 2002 states as follows: ì33 (1) A practitioner shall not accept any brief if to do so would cause the practitioner to be professionally embarrassed under the following circumstances:

(a) there is or appears to be some conflict or a significant risk of some conflict either between the interests of the practitioner, or of any partner or other associate of the practitioner and some other person or between, the interests of anyone or more of their clients;” the committee stated. “or

(b) the matter is one in which there is a risk of a breach of confidences entrusted to the practitioner, or to any partner or other associate, by another client or where the knowledge which the practitioner posses(es) of the affairs of another client would give an advantage to the new client.

“Although the alleged misconduct occurred before the coming into force of the Legal Practitioners Rules, S.I. No. 51 of 2002, we are satisfied that the rules of 2002 are a mere codification of the common law practice rules pertaining to confidentiality.”

The committee stated that it was its considered view that there was no ethical wall or Chinese Wall at either Messrs R.M.A Chongwe and Company or Messrs. Simeza, Sangwa and Associates to sufficiently isolate Dr Chongwe or indeed Simeza to prevent them from tainting Sangwa.

“This is so even in the light of the explanation given with regard to how files were handled by individual advocates,” the committee stated.

The committee stated that both advocates breached the common law rule which required an advocate who had acquired confidential information concerning a former client during the course of acting for that client, not to accept instructions to act against the client as enshrined in rule 33 (1) (f) and (g) of Statutory Instrument No. 51 of 2002.

The committee stated that as partners who had previously worked in the same law firm and later on set up their own practice, they should not have taken instructions from Leopard Investment Company Limited in a matter involving the complainant which had been dealt with by Simeza even if it was done under the supervision of Dr Chongwe.

“Non compliance with the rules amounts to professional misconduct or conduct unbefitting a practitioner (see rule 41). The disciplinary committee finds the 1st and 2nd Respondents in breach of professional conduct. Does the breach warrant recommending the removal of Advocates from the Roll of Practitioners?

Although the action of the respondents in the Committee's view may not amount to serious disgraceful misconduct, it's nonetheless misconduct,” the committee stated. “However, it must be noted that most disqualifications from practicing law were concerned with dishonesty.

In considering the appropriate alternative punishment to be given to the Respondents, the Committee has taken into account the fact that the Respondents withdrew from representing Leopard Investment Company Limited when the anomaly was brought to their attention.

An apology at the right time could have saved the committee and the parties' valuable time.

“The following is therefore, the ruling of the Committee: (i) that the Respondents be admonished for their misconduct; and (ii) that each Respondent is hereby ordered to pay a penalty of 100,000 penalty units within 30 days hereof.”

When contacted for comment over the matter, Sangwa asked this author to talk to LAZ first.

When reminded that he had been called to get his side of the story, Sangwa responded: “But you don't normally do that, do you? No, you never do that. You have written about me before without even talking to me. Speak to LAZ first, they will have something more constructive than I would have.”

The ruling was signed by then Attorney General Mumba Malila and members Mwenya Lwatula, S.C. Marjorie Johnson-Mwenda, Albert Wood and Abha Patel.

Labels: JOHN SANGWA, LAZ, ROBERT SIMEZA

posted by MrK @ 7:14 AM