The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian attorney yesterday lost his challenge to the process that saw him disbarred over real estate transactions where he twice represented both parties in deals for the same property.

Troy Kellman’s bid to overturn last year’s verdict by the Bar Council’s disciplinary tribunal, which ruled he “be struck from the roll” and forbidden to practice as an attorney, was branded “a bit hollow” and found to have “no merit” by a unanimous Court of Appeal judgment.

Sir Michael Barnett, the appeal court’s president, in a written ruling dismissed the now-former attorney’s arguments that he was denied “due process” and that the Bar Council’s ethics committee was not properly constituted when it decided to refer the complaints against him to the disciplinary tribunal.

The events that led to Mr Kellman being disbarred occurred more than a decade ago when he was instructed by the state-owned Bahamas Mortgage Corporation to prepare a mortgage for its borrower clients, Caleb Dorsett and Shamene Bain, in 2013.

Mr Kellman gave an opinion that title to the property, on which the mortgage was to be secured, was “good and marketable”. However, the Bahamas Mortgage Corporation accused him of “negligence” for failing to disclose that he was also representing Lion Management Company, which was the company selling the property to Mr Dorsett and Ms Bain.

In other words, Mr Kellman was acting for both parties in the same real estate deal. The Bahamas Mortgage Corporation alleged that he failed to secure its interest, as neither the conveyance nor mortgage were stamped and recorded in the Registry of Records, while also not completing a the first-time buyers’ Stamp Tax exemption application on the buyers’ behalf.

Finally, the state-owned lender alleged that Mr Kellman was also aware that Lion Management “did not pay the balance of the purchase price” when it itself acquired the property from Colina Insurance Company. The latter, and its Colina Mortgage Corporation affiliate, echoed the Bahamas Mortgage Corporation in making a separate complaint to the Bar Association’s ethics committee over that same property.

“The basis of the complaint is that you represented the complainant as vendor, and Ricardo Rolle as purchaser, in a transaction in 2012,” the ethics committee told Mr Kellman. “That you have failed to complete the transaction on behalf of the complainant. That subsequently it was discovered that you recorded the conveyance to the purchaser and failed to ensure that Colina was paid the purchase price.”

Summing up the situation, Sir Michael wrote the the Court of Appeal’s judgment: “Two complaints were made to the Bar Council against the conduct of the appellant. The complaints were made by the Bahamas Mortgage Corporation and Colina Mortgage Corporation.

“The complaints related to the conduct of the appellant whilst acting as an attorney on both sides of a real estate transaction. With respect to Colina, that company agreed, as mortgagee, to sell a parcel of land to Ricardo Rolle or a company beneficially owned by him.

“With respect to Bahamas Mortgage Corporation, the dispute related to a mortgage loan by Bahamas Mortgage Corporation to a purchaser of the land from Rolle or a company beneficially owned by him (Lion Management Company). The appellant acted as counsel for Bahamas Mortgage Corporation in that mortgage transaction.”

Sir Michael, though, noted that the merits of the complaints were not the subjects of Mr Kellman’s appeal. Rather, it was the process employed by the Bar Association’s ethics committee and disciplinary tribunal that led to the latter’s February 2023 disbarment verdict.

He added, though, that Mr Kellman never responded to the two letters sent to him by the Bar’s ethics committee on November 22, 2019, and October 9, 2020. These set out the complaints by the Bahamas Mortgage Corporation and Colina, respectively, and gave him until December 16, 2019, and October 23, 2020, to reply.

Both letters warned that the committee may make a decision on the complaint if Mr Kellman failed to respond. And, on June 1, 2020, the ethics committee told him it had “determined that there exists reasonable grounds for the making of the complaint against you, and has referred the matter to the disciplinary tribunal” in relation to the Bahamas Mortgage Corporation filings.

As for Colina’s complaint, Mr Kellman received a second warning letter that gave him a further six days until November 30, 2020, to respond. And, on December 22 that same year, he was informed that the second accusation was also being referred to the disciplinary tribunal according to the Legal Profession Act.

The tribunal panel, headed by Justice Renae Mackay and featuring attorneys Stephanie Unwala, Alexander Maillis and James Bain, began hearing the complaint in May 2021. At no time during the hearing did the appellant challenge the jurisdiction of the disciplinary tribunal to investigate the complaint,” Sir Michael noted.

“The appellant agreed that the two complaints from Bahamas Mortgage Corporation and Colina could be heard together.... On February 8, 2023, the disciplinary tribunal published a judgment whereby it ordered that the appellant be struck from the roll forthwith.”

Maurice Glinton KC, acting for Mr Kellman in appealing this decision, made clear that they were not challenging the substance of the complaints against the latter but, rather, the process by which the tribunal had come to its decision.

Instead, they attacked the verdict on the grounds “that it had no jurisdiction to determine any complaint referred to it by an ethics committee which was improperly constituted”. This was based on the argument that “a retired justice of the Supreme Court cannot be a member of the ethics committee”.

Retired justice Rhonda Bain chaired the ethics committee which referred the complaints against Mr Kellman to the disciplinary tribunal. However, Sir Michael said the Legal Profession Act stipulated that all persons allowed to practice as attorneys for more than five years are eligible to serve on the ethics committee. And retired justice Bain had practiced for more than ten years before becoming a judge.

Mr Kellman sought to argue that a judge “ceases to be a member of the Bar” upon their appointment to the bench, and thus retired justice Bain’s appointment as chairman meant the ethics committee was “invalid” and “illegally constituted” when it dealt with his complaint.

However, Sir Michael and the Court of Appeal disagreed. “Being a judge does not immunise a person who is a counsel and attorney of the Supreme Court from being disciplined by the Bar Council for improper conduct,” the appeal court president wrote.

“In my judgment, there is simply nothing in the Act which prevents a retired judge from serving on the ethics committee. That judge is still a counsel and attorney of the Supreme Court and thus, by section three, a member of the Bar. This is so whether or not the retired judge practices by appearing before the court... In my judgment, the challenge to the constitution of the ethics committee must fail.”

Mr Kellman also argued he was “denied due process” by the ethics committee as it “failed to notify him of the hearing at which a decision would be made whether to reprimand him or refer the matter to the disciplinary tribunal”. He insisted that it was a legal requirement to notify him of the hearing and give him a chance to argue his case.

“The fact that he did not respond to the letters from the ethics committee did not eliminate or obviate the need for the ethics committee to have a hearing for which he was entitled to notice before making any determination on the complaint against him,” Sir Michael noted of Mr Kellman’s arguments.

However, he ruled: “The complaint by the appellant is a bit hollow. The appellant never replied to any of the letters from the ethics committee indicating that it was his desire to contest or be heard on the subject of the complaints.

“Moreover, at the hearing before the disciplinary tribunal, he had an opportunity to respond to the complaints and he did so. He put in a witness statement and had the opportunity to cross-examine the witnesses for the complainants.

“He never challenged the jurisdiction of the disciplinary tribunal to investigate the complaints. The appellant has not in any way been prejudiced as he had an opportunity to make representations to the ethics committee and he refused to respond to the ethics committee’s letters.”

Mr Kellman also complained that the disciplinary tribunal relied to heavily on the Supreme Court verdict by former justice Keith Thompson, which dealt with the same real estate transactions, and did not sufficiently carry out its own investigation.

This, though, was dismissed by Sir Michael who found it had carried out its own independent probe. And he also rejected Mr Kellman’s argument that he was “denied the effectiveness of his right to appeal” by publication of the disciplinary tribunal’s decision against him prior to the Court of Appeal hearing.