[UPDATED] DEAD MAN’S DEBT

THE ESTATE of senior attorney Theodore Guerra, SC, has been ordered to repay the sum of $344,700 to the family to hired him to represent their sons on a murder charge.

Guerra died in December 28, 2012, and his two sons as executors of his Estate were sued by Clive Charles, the father of Clive and Kwesi Charles, who were charged with murder in 2008 and committed to stand trial in 2009.

Guerra and Charles came to agreement that the latter would pay $350,000 for the attorney to represent his two sons at their trial in the High Court, and according to the lawsuit, the elder Charles began paying the instalments in January 2010 for Guerra to represent his sons.

He continued to pay instalments and the last payment was made on December 19, 2011, although the receipts amounted to $344,700.

Guerra died without ever appearing in the High Court for Charles’ sons or making arrangements for them to be represented at the trial. Charles complained that neither Guerra’s sons nor his Estate refunded the money he paid.

In an oral decision after a short trial at the Hall of Justice, Port of Spain on Monday, Justice Frank Seepersad ordered Guerra’s sons, as executors, to repay Charles. The re-payment will be added to the Estate’s existing debt and its obligations.

In his ruling, Seepersad said the situation was “rather unfortunate” and demonstrated the urgent need for more effective measures to be enacted to regulate the receipt and collection of advanced legal fees.

“Over the last 10 years the legal profession has seen a dramatic increase in its numbers the current legislative framework is ill equipped to properly monitor the profession on the one hand and protect the public on the other.

“The time has come where a radical review of the Legal Profession Act is required,” he advocated.

According to Seepersad, the pivotal role lawyers play in society cannot be marginalised. “However citizens also need to be protected against unscrupulous and unethical practitioners ,” he said.

In the case before him, he emphasised that Guerra did not act dishonourably, but because his health failed him, leading to his death, he could not discharge his contractual obligation.

“Single practitioners are particularly vulnerable and the disciplinary committee (of the Law Association) in its current form may not be able to efficiently manage and regulate the number of complaints before them.

“The Legal Profession Act has established a compensation fund which makes available to citizens compensation in circumstances where they have suffered hardship due to their lawyers’ failure but there is no clarity as to whether aggrieved clients have been compensated and if so what was the quantum of the respective orders for compensation,” he said. Seepersad suggested that consideration be given to the establishment of a permanently staffed disciplinary body to treat and determine complaints filed against lawyers and act in a supervisory rule to monitor whether the lawyers are maintaining client accounts and to ensure that these fees are not touched until the contracted service has been delivered.

“It is necessary to consider the establishment of an office of the legal ombudsman, who can also act as a third-party to resolve disputes as between members of the profession and members of the public,” he also recommended.

“Ultimately the system must ensure that persons who practice law do so in a regulated principal and professional manner and the system must ensure that citizens are not taken advantage off,” he said as he further purposed making it mandatory for all attorneys to have professional indemnity insurance.

“There is a responsibility which rests on the shoulders of lawyers to regulate justice, to defend rights and to ensure that the law is applied with equality, but not all in this profession discharge their responsibility with the requisite degree of professionalism that is required.

“Ultimately lawyers who take advantage of unsuspecting clients must be held to account,” he said.