A private attorney charged with professional misconduct by the Law Society of Botswana (LSB) has approached the Court of Appeal (CoA) seeking a review of the charges and the setting aside of his guilty verdict.
The LSB disciplinary committee had found Abel Modimo of Modimo & Associates guilty of unprofessional conduct for overreaching a collection commission from a client. He lost the case at the High Court.
Modimo had applied for judicial review to set aside the determination of the LSB disciplinary committee following an order to refund the Southern African Furniture Manufactures company P34,812. He was fined P3, 000.
Modimo’s attorney Richmond Solomon argued that the decision of the LSB disciplinary committee ought to have been reviewed as it was based on an unreasonable and procedural impropriety.
Solomon argued that there was a fundamental defect in the disciplinary committee proceedings.
“The decision was based on the illegality, and the High Court in dismissing my application failed to test the procedural correctness of the disciplinary committee,” he said.
He also argued that there was a proper case to invoke the review, as there was no assessment of evidence, which was presented to the trial court by LSB.
Solomon said the trial court in exercising its discretion without conceding that there was irregularity in undertaking the review, gave deference to disciplinary committee.
Representing LSB, Sikhumbuzo Masuku said the trial court dismissed the appellant because he had not brought any evidence to support his review application.
Masuku said Modimo’s supporting affidavit at the trial court did not disclose any basis that the court could have tested the procedural correctness of the disciplinary committee.
“It is contended that the appellant did not put a case for the review premised on the grounds he raised. The court was only concerned with the legitimacy of the procedure arrived at during the decision to charge him,” he said.
Masuku further argued that Modimo did not complain about a fundamental defect in the procedure that was followed by the disciplinary committee at the trial court. “The affidavit did not disclose factors that would invite the court to test the procedural correctness of the decision,” he said.
Masuku submitted that Modimo only sought to justify his actions and that he had disguised an appeal in the form of a review despite having failed to act in accordance with the law.
“There was a non existing attorney and a client relationship and that did not absolve the appellant from the charge and duty to act in accordance with well-founded ethics of the legal profession,” he argued. He maintained that the disciplinary committee found correctly that the appellant acted improperly in charging collection commission on the company where a single payment was effected.
Attorney for the Southern African Furniture Manufactures, Jasper Daniels, submitted that Modimo ought to be given a harsh punishment of suspension or being struck off from the roll of attorneys.
He said the court should impose a proper sanction on the conduct of the appellant for the damages he caused the company when he overcharged it.
“The appellant acted improperly and unprofessionally in overreaching on collection of commission and thereafter being charged, he still went and acted blatantly in dishonest fashion and sought to recover a vastly and inflated amount from the client,” he said.
On the basis that the company was not a respondent at the trial court, Daniels said the company had a direct and substantial interest in the outcome of the proceedings.
Daniels argued that as one of the parties, they had a legitimate interest in bringing the litigation to finality and they should be permitted to adduce further evidence.
“The evidence was not presented at the trial court and that should not be attributed to the fault of the company as the outcome of the appeal also depend on the evidence,” he argued.