Schedule 5
(Section 38)
DISCIPLINARY PROCEEDINGS
1. Secretary of the Committee
For the purposes of this Schedule, “Secretary” means the Registrar or the person deputed by him or her to perform all or any of the functions of the Secretary.
2. Application and Affidavits—Form 1 and Form 2
An application to the Committee to require an attorney-at-law to answer allegations contained in an affidavit shall be in writing under the hand or mark of the applicant in Form 1 of the Appendix and shall be sent to the Secretary together with an affidavit by the applicant in Form 2 of the Appendix stating the matters of fact on which he or she or she relies in support of his or her application.
3. Further information and document, no case to answer
-
(1) Before fixing a date for the hearing, the Committee may, within 7 days of the application being made under paragraph 2, serve on the applicant a notice in writing requesting the applicant to supply such further information and documents relating to the allegations as it thinks fit.
-
(2) Where an application is made under paragraph (2) and the Committee is of the opinion that no prima facie case is shown, the Committee may, without requiring the attorney-at-law to answer the allegations, dismiss the application and serve notice in writing on the applicant and the attorney-at-law of the dismissal within 7 day of the application being made.
4. Notice of hearing
-
(1) Where an application is made under paragraph 2 and in the opinion of the Committee a prima facie case is shown, the Committee shall fix a day for hearing and the Secretary shall serve notice thereof on the applicant and on the attorney-at-law and shall also serve on the attorney-at-law a copy of the application and affidavit within 7 days of the application being made.
-
(2) The date fixed for the hearing under subparagraph (1) shall not be less than 21 days or more than 28 days from the date of service of the notice.
5. List of documents for hearing—Form 3 and Form 4
-
(1) The notices under paragraph 4 shall be in Form 3 and Form 4 of the Appendix, as the case may be, and shall require the applicant and the attorney-at-law respectively to furnish to the Secretary and to each other a list of all documents on which they respectively propose to rely.
-
(2) A list under subparagraph (1) shall, unless otherwise ordered by the Committee, be furnished by the applicant and by the attorney-at-law respectively at least 7 days before the date of hearing.
6. Inspection of document
Either party may inspect the documents included in the list furnished by the other, and a copy of any documents mentioned in the list of either party shall, on the application of the party requiring it, be furnished to that party by the other within 3 days after the receipt of the application.
7. Proceedings in absence of parties
If either or both parties fail to appear at the hearing the Committee may, upon proof of service of the notice of hearing, proceed to hear and determine the application in his or her or their absence.
8. Affidavit evidence
The Committee may in its discretion, either as to the whole case or as to any particular facts, proceed and act upon evidence given by affidavits.
9. Committee may summon deponent to give oral evidence
Where the Committee proceeds to act upon evidence given by affidavit in accordance with paragraph 8, any party to the proceedings may require any deponent to any such affidavit to be summoned, to appear before the Committee, unless the Committee is satisfied that the affidavit is purely formal and the requirement of the appearance of the deponent is made with the sole object of causing delay.
10. Subpoena Form
A summons issued by the Committee under section 38 of this Act shall be as prescribed in Form 5 of the Appendix with such variations as the case may require.
11. Notice to parties of date of findings
If the findings and order of the Committee are not pronounced on the date of hearing, notice shall, within 14 days of the hearing, be given to the parties of the date when the findings and order will be pronounced.
12. Applications to be heard in private
The Committee shall hear all applications in private.
13. Adjournment of hearing
The Committee may of their own motion, or upon the application of either party, adjourn the hearing upon such terms as may appear just to the Committee.
14. Notes of proceedings
-
(1) Notes of proceedings shall be taken by the Secretary or other person appointed by the Committee, and any party who appeared at the proceedings is entitled to inspect the original or a copy thereof.
-
(2) Every person entitled to be heard upon an appeal against an order of the Committee is entitled to a copy of such notes on the payment of the charges presented by the Committee.
15. Service of notice of document
-
(1) Service of any notice or document required by this Schedule may be effected by registered letter addressed to the last known place of abode or business of the person to be served, and proof that such letter was so addressed and posted shall be proof of service.
-
(2) Any notice or document required to be given or signed by the Secretary may be given or signed by him or her or by any person duly authorised by the Committee in that behalf.
16. Secretary to retain affidavits
-
(1) All Affidavits shall be filed and kept by the Secretary.
-
(2) The Committee may order that any documents produced or used at a hearing shall be retained by the Secretary until the time for appealing has expired, and if notice of the appeal be given, until appeal is heard or otherwise disposed of.
17. Privileges and immunities
-
(1) Attorneys-at-law and witnesses shall have the same privileges and immunities in relation to hearings on applications under this Act as in any court of law.
-
(2) A party to an application under this Act is entitled to be represented by an attorney-at-law.
18. Dismissal of application after hearing
If after hearing an application the Committee is satisfied that no case of professional misconduct has been made out, it may dismiss the application.
19. Appeal against failure to act
Where the Committee fails to act within the time limit specified under this Schedule the Applicant may apply to the Appeals Commission for the determination of the application which was made under paragraph 2.
| APPENDIX |
| FORM 1 |
| (Paragraph 2) |
| APPLICATION AGAINST AN ATTORNEY-AT-LAW |
| To the Committee constituted under the Legal Profession Act. In the matter of .............. ..................................... an attorney-at-law ...................................... and.................................................. In the matter of the Legal Profession Act |
| I, the undersigned .............................................. hereby make application that ....................................................... of .............................................................. ....................................................... attorney-at-law, may be required to answer the allegations contained in the affidavit which accompanies this application. |
| I make this application on the ground that the matters of fact stated in the said affidavit constitute conduct unbecoming of his or her profession on the part of the said .................................. in his or her capacity as attorney-at-law. |
| In witness whereof I have hereunto set my hand this ......................................... day of .................................. |
| ......................................................... |
| Signature |
| ......................................................... |
| Address |
| ......................................................... |
| Profession, business or occupation |
| FORM 2 |
| (Paragraph 2) |
| AFFIDAVIT BY APPLICANT |
| (a) | Name of attorney-at-law | In the matter of (a) an attorney-at-law ................................................. and In the matter of the Legal Profession Act |
| (b) | Name of applicant | I, (b) make oath and say as follows: |
| (c) | Place of residence | (1) That I reside at (c) |
| (d) | Country | in the country of (d) |
| (e) | Occupation | and I am a (e) |
| (f) | Postal Address | and my postal address is (f) |
| (g) | Name of attorney-at-law | (2) That (g) |
| (h) | Set out facts complained of | (h) |
| (i) | Set out shortly the ground of complaint | (3) The complaint I made against the attorney-at-law is that he or she (i) |
| Sworn at .......................... this ....................... day of ....................... , ................ If the person making the Affidavit can ......................... (The same having first read and write, strike out the words in ........................ over and explained to the bracket. .................................. deponent when he or she appeared ....................................................... fully to understand the same) |
| Before me: |
| ................................. |
| Justice of the Peace |
| FORM 3 |
| (Paragraph 5) |
| NOTICE BY COMMITTEE TO APPLICANT |
| Complaint No. ............................................. of ............................................... |
| In the matter of .......................... attorney-at-law ...................... ...................... and |
| In the matter of the Legal Profession Act, |
| To .................................................................................................. of .................................................................................................... |
| The ...................... day of .......................... , is the day ....................... fixed for the hearing of your application in the matter of .......................................... attorney-at-law by the Disciplinary Committee constituted under the Legal Profession Act, ....................... |
| The Committee will sit at ................... at ................ a.m. |
| If you fail to appear the Committee may in accordance with the Rules made under the Legal Profession Act ....................... proceed in your absence. |
| You are requested by the Rules under the Legal Profession Act .......... to furnish to the said ............................ and the Secretary of the Committee at least 14 days before the said ................. day of ....................... at a list of all documents on which you propose to rely. |
| Either party may inspect the documents included in the list furnished by the other and a copy of any document mentioned in the list of either party must, on the application of the party requiring it, be furnished to that party by the other within 3 days after receipt of the application. |
| You are requested to acknowledge the receipt of this Notice without delay. |
| Dated the ........... day of ....................... , ............. |
| ...................................... |
| Secretary, Disciplinary Committee |
| FORM 4 |
| (Paragraph 5) |
| NOTICE BY COMMITTEE TO ATTORNEY-AT-LAW |
| Complaint No. ................................... of ............................................... |
| In the matter of ............................. attorney-at-law .................................... ................................................ and |
| In the matter of the Legal Profession Act |
| To ................................................. of ........................................ attorney-at-law ........................................... |
| Application has been made by ................................................................. of ................................ to the Disciplinary Committee constituted under the Legal Profession Act ................ that you may be required to answer the allegations contained in the affidavit a copy whereof accompanies this Notice. |
| The .............. day of .................... , ........ is the day fixed for the hearing of the application by the Committee. The Committee will sit at ....................... o'clock in the forenoon. If you fail to appear the Committee may in accordance with the Rules made under the Legal Profession Act ....................... proceed in your absence. |
| You are required by the Rules made under the Legal Profession Act .......... to furnish to the applicant and to the Secretary of the Committee at least 14 days before the day fixed for hearing a list of all the documents on which you propose to rely. |
| Either party may inspect the documents included in the list furnished by the other and a copy of any document mentioned in the list of either party must, on application of the party requiring it, be furnished to that party by the other within 3 days after receipt of the application. |
| You are requested to acknowledge receipt of this Notice without delay. |
| Dated the ........... day of ....................... , ............. |
| ...................................... |
| Secretary, Disciplinary Committee |
| FORM 5 |
| (Paragraph 10) |
| SUMMONS BY COMMITTEE TO WITNESS |
| Legal Profession Act; Section 38 |
| Complaint No. ...................................... of ............................................ |
| In the matter of ................................ attorney-at-law ................................. .......................................... and |
| In the matter of the Legal Profession Act, |
| To ................................ |
| You are hereby summoned to appear before the Disciplinary Committee constituted under the Legal Profession Act, ............... at .................................................. on the .................... day of ...................... at the hour of ..................... a.m./p.m., and so from day to day until the application in the above matter is heard, to give evidence on behalf of ....................... (if the person summoned is to produce books or documents add) and you are required to bring with you (specify the books or documents required). |
| Whereof fail not at your peril. |
| Dated the .......... day of ...................... , ........ |
| ...................................... |
| Chairperson |