Cassation
No. 462 of 2019 - Discipline of Lawyers
Panel:
Chaired by Mr. Judge/Mohamed Abdel-Rahman Al-Jarrah - Chief Judge of the Circuit
- with the membership of Judges / Mohamed Ahmed Abdel-Qader and Abdel-Haq Ahmed
Yammine.
Lawyer.
Law "Application thereof". Discipline of “Lawyers”. Behaviour of
"the lawyer".
-
Lawyer. Shall abide by the traditions and ethics of the legal profession. His
behaviour towards the judiciary. Shall be in a manner that respects the dignity
of the judiciary. Shall avoid any matter that hinders the hearing of cases or
obstructs the course of justice. The basis therefor? Article 35 of Federal Law
No. 13 of 1991 on the Regulation of the Legal Profession.
-
The Disciplinary Board’s decision to hold the appellant disciplinary
accountable for violating the text of Article 35 of the aforementioned law. By
breaching his professional obligations. Application of the correct rule of
law.
Whereas,
it is prescribed - as per the provisions of Article 35 of Federal Law No. 23 of
1991 on the Regulation of the Legal Profession - that the lawyer may not carry
out any work contrary to the ethics or traditions of the legal profession and he
shall behave towards judges in a manner respecting the dignity of the judiciary
and avoid anything that would hinder the adjudication of cases or obstruct the
course of justice.
Whereas,
it is upheld in the documents, especially the minutes of the session dated
16/1/2018 specified for the hearing of the lawsuit No. 6738 of 2017, Ajman -
Penal, wherein the judge (the complainant) stated that the appellant (the lawyer
of the accused) caused - by screaming and raising his voice - chaos in the
courtroom, prevented the judge from interrogating the accused, and hindered the
hearing of the case, until the session dated 21/1/2018; therefore, the
appellant's act shall be deemed as having obstructed the course of justice and
hindered the adjudication of the case, and the said act shall be considered as
inconsistent with the dignity of the judiciary, which constitutes inevitably a
disciplinary offence for which he shall be punished - in his capacity as a
lawyer - by the penalty prescribed therefor in the provisions of the Law on the
Regulation of the Legal Profession, and since the contested decision concluded
to hold the appellant accountable disciplinary for breaching his professional
duties, it shall, thus, be deemed as having applied the correct rule of law.
Further, the pleas raised by the appellant as regards his non-breach of his
professional duties, the failure to draft an independent report on the incident,
the failure to file the complaint within the time-limit prescribed therefor, the
failure to respond to his defence to call on the defence witnesses and the
failure to review the court cameras, shall be deemed merely a disagreement as
regards the aspect of the fact as inferred by the Disciplinary Board; in
addition, the said Board has disproved the appellant's defence.
Whereas,
the whole cassation is ungrounded, therefore, it shall be
dismissed.
Whereas,
in the facts - as apparent in the appealed decision and all other documents -
the judge / ........ has issued on 9/9/2018, a record wherein he stated that
during the hearing of the criminal case No. 6738 of 2017, Penal – Ajman,
upon calling on the accused, the appellant lawyer came and started screaming,
"Why are my client is foot tied?" objecting to the police procedures, which
constituted a breach of the court’s order and a violation of Article 163
of the Criminal Procedure Law and Article 47 of the Law of the Legal Profession.
Whereas, upon the appellant’s interrogation during the Public
Prosecution’s investigations, he denied having raised his voice at the
judge or the prosecution and having committed an act that breached the
session’s order and stated that he attended with his client (the accused
held in custody and that upon calling on him, he appeared before the court, tied
with iron cuffs, therefore, he requested the judge (the complainant) to
apply the legal article prohibiting the appearance of the accused before the
court tied with iron cuffs.
Whereas,
the Public Prosecution instituted the case and referred the appellant to the
Lawyers Disciplinary Board because he did not adhere to the ethics of the legal
profession when he did not behave in a manner befitting the dignity of the
judiciary, in a criminal case pending before the court, by raising his hands,
screaming and causing chaos in the session, which hindered the adjudication of
the judicial proceedings and obstructed the course of justice, thus, his
behaviour constitutes a misdemeanour as per the provisions of Articles 35/2, 47
of Federal Law No. 23 of 1991 on the Regulation of the Legal Profession and its
amendments, and in its session held on 17/4/2019, the Disciplinary Board ruled
to punish the appellant by serving a warning letter on him, to draw his
attention to the aforesaid act and to request him not to repeat this violation
in the future.
The
appellant was not satisfied with this decision, therefore, he filed an appeal
against it, wherein he requested its acceptance in form, and in the merits, the
cancellation of the appealed judgment and his acquittal, on the grounds that the
appealed decision violated the law and erred in its application and breached the
right of defence, since he did not breach his professional obligations and did
not hinder the course of proceedings and that he requested the court to observe
the provisions of Article 164 of the Criminal Procedure Law, which stipulates
that the accused shall be brought before the court without cuffs, and not to
accept the lawsuit, on the grounds that it violates the text of Article 46 of
the Law on the Regulation of the Legal Profession that requires the issuance of
independent minutes, stating the violation and its referral to the Public
Prosecution, and that the complaint was filed after the time-limit prescribed
therefor, and due to the procrastination in reporting and the failure to respond
to his defence to call the defence witnesses and review the court's
cameras.
Whereas,
on 19/5/2019, the Public Prosecution submitted a memorandum of opinion, whereby
it deemed to dismiss the appeal and confirm the appealed decision.
In
the pleading session, the appellant attended, denied the charge against him and
requested his acquittal. The present date's session was set for the
pronouncement of the judgment.
Whereas,
on the merits, it is prescribed - as per the provisions of Article 35 of Federal
Law No. 23 of 1991 on the Regulation of the Legal Profession - that the lawyer
may not carry out any work contrary to the ethics or traditions of the legal
profession and he shall behave towards judges in a manner respecting the dignity
of the judiciary and avoid anything that would hinder the adjudication of cases
or obstruct the course of justice.
Whereas,
it is upheld in the documents, especially the minutes of the session dated
16/1/2018 specified for the hearing of the lawsuit No. 6738 of 2017, Ajman -
Penal, wherein the judge (the complainant) stated that the appellant (the lawyer
of the accused) caused - by screaming and raising his voice - chaos in the
courtroom, prevented the judge from interrogating the accused, and hindered the
hearing of the case, until the session dated 21/1/2018; therefore, the
appellant's act shall be deemed as having obstructed the course of justice and
hindered the adjudication of the case, and the said act shall be considered as
inconsistent with the dignity of the judiciary, which constitutes inevitably a
disciplinary offence for which he shall be punished - in his capacity as a
lawyer - by the penalty prescribed therefor in the provisions of the Law on the
Regulation of the Legal Profession, and since the contested decision concluded
to hold the appellant accountable disciplinary for breaching his professional
duties, it shall, thus, be deemed as having applied the correct rule of law.
Further, the pleas raised by the appellant as regards his non-breach of his
professional duties, the failure to draft an independent report on the incident,
the failure to file the complaint within the time-limit prescribed therefor, the
failure to respond to his defence to call on the defence witnesses and the
failure to review the court cameras, shall be deemed merely a disagreement as
regards the aspect of the fact as inferred by the Disciplinary Board; in
addition, the said Board has disproved the appellant's defence.
Whereas,
the whole cassation is ungrounded, therefore, it shall be
dismissed.