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Al-Rawi should drop Rowley matter—Daly

Published: 
Sunday, March 15, 2015
Keith Rowley

Legal luminary Martin Daly, SC, contends that attorney Faris Al-Rawi should consider removing himself from Dr Keith Rowley’s legal team in the defamation case with former attorney general Anand Ramlogan. He made this comment because of doubt that Al-Rawi’s witness statement on Rowley’s behalf in the case comes under the exceptions set out in the Legal Profession Act which allows for lawyers to appear as witnesses for clients. 

Yesterday, Daly, after having been shown Al-Rawi’s 12-page December 19, 2014, statement, expressed surprise at its contents. In fact, he said, “If it (the document) is the witness statement to which the Prime Minister was referring then the statements on paragraph 38 are completely at odds with the professional independence of an instructing attorney. Mr Al-Rawi would be well advised to consider taking himself off the record in the matter.”

The offending paragraph in the statement, a copy of which was obtained by the Sunday Guardian, stated: “Having observed the claimant in the discharge of his role and functions as Attorney General from the date of his appointment on May 26, 2010, I (Al-Rawi) can say that my estimation of the claimant as a member of the Inner Bar and as Attorney General has been diminished and negatively affected by his conduct in office.”

The paragraph went on to state, “I have grave doubts as to his ability (a) to give independent advice to the Government on issues which touch and concern wrongdoing of public officials and/or other people affiliated with the UNC and to take strong positions and/or action against such persons and, (b) to draw and maintain the line between his role as Attorney General and as a politician.” Daly’s reaction to the particular paragraph in the document suggested it was highly contentious, especially given that Al-Rawi is the instructing attorney for the Opposition Leader in the matter. 

However, the senior counsel declined further comment on the matter. Last week, Prime Minister Kamla Persad-Bissessar, on the hustings, contended that the Legal Profession Act prohibits a lawyer from appearing as witness and Al-Rawi could not be a witness for Rowley while acting as his lawyer. However, what the Prime Minister omitted to add in her statement was that the Legal Profession Act makes provisions for exceptions to that rule. 

What the law states

The Legal Profession Act Third Schedule, Part A (Code of Ethics, General Guidelines) 35) (1) states: An Attorney-at-law should not appear as a witness for his own client except as to merely formal matters or where such appearance is essential to the ends of justice. (2) if an Attorney-at-law is a necessary witness for his client with respect to matters other than such as are merely formal, he should entrust the conduct of the case to another Attorney-at-law of his client’s choice.

This section is listed under the non-mandatory section of the Act, but part B of the Act, Mandatory Provisions and Specific Prohibitions, sets out clear guidelines that must be followed. For example, Discipline item 35 (2) in the Act states: “A breach of the rules in Part A may constitute professional misconduct and in Part B shall constitute professional misconduct.”

A case for possible disciplinary action

Legal sources, after viewing Al-Rawi’s statement, said its contents were synonymous with a full witness statement and “it is not likely to fall within the exception under the Legal Professional Act. “He goes through a whole sequence of events and then when you look at paragraph 38, there are things about his statement describing a sequence of events about which someone else in the Parliament at the time might have a different recollection,” a legal source said. 

The legal source explained if there was going to be a contest about who said what, then “clearly it is a statement that is much more than a formal statement or essential to the ends of justice. It is a potential contest of fact and it is not likely to fall into the realm of the exception.” The source agreed with Daly that Al-Rawi should return Rowley’s brief and remove himself from the matter. 

However, the source went further, stating that Al-Rawi, in paragraph 38, “clearly descended into the arena in making a comment about the (then) AG and as an instructing attorney he needs to withdraw.” The thoughts espoused in the statement, the source said, removed the “neutrality as an instructing attorney.”

“If he has this strong view of the claimant in the case (Ramlogan) it may influence how he treats with the other independent witnesses. He is descending into the arena and purporting to give evidence of his view of the standing of the (then) AG or the regard [in which] the then AG should or should not be held. He cannot go deeper into the arena than that, he has to come out,” a legal source added. 

The source also added that only a disciplinary tribunal can determine if Al-Rawi committed a breach of the Act and a tribunal could only be triggered after a formal complaint was lodged.

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