The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A grandson of Sir Milo Butler, the first Bahamian governor general, yesterday disclosed he is “extremely crushed and disappointed” but still “holding my head high” after the prohibition on him practicing as an attorney for “misappropriating” $862,287 from AML Foods was upheld.

Craig F. Butler, principal of the law firm that bears the same name, told Tribune Business he feels his offence was “not worthy of disbarment” as he had “never run away” from the fact he owed this sum to the BISX-listed food retail and franchise group and needed to repay it.

Speaking out after the Court of Appeal, in a verdict issued yesterday, unanimously maintained the decision by the Bahamas Bar Council’s disciplinary tribunal to ban Mr Butler from the legal profession and strike him “from the Roll” while noting that AML Foods, the owner and operator of the Solomon’s and Cost Right retail formats, has yet to recover “any part of this debt” owed to it.

Noting that it has been nine years since the offence complained of occurred, when Mr Butler was representing AML Foods in a real estate deal and instead diverted the funds earmarked for the purchase to other unauthorised purposes, the Court of Appeal said: “The misappropriation of client funds constitutes one of the most serious forms of professional misconduct, as it strikes at the heart of the trust reposed in an attorney.

“Although disbarment is the most serious sanction that can be placed on an attorney, it is not reserved only for cases involving dishonesty. The respondent [Bar Council disciplinary tribunal] identified four material considerations justifying this sanction, namely, the seriousness of the breach by a senior attorney, the sacrosanct nature of client funds, the need for deterrence and the adverse impact on [AML Foods].

“Considering these factors, the tribunal being a specialist body was entitled to conclude that the appellant was to be struck from the Roll. The sanction imposed was neither disproportionate nor wrong in principle.” Mr Butler, though, is continuing to argue that the penalty is unduly severe and disproportionate, and yesterday pledged to this newspaper he will “continue the fight” after filing a constitutional motion with the Supreme Court last November in a bid to overturn the Tribunal’s verdict.

“I’m extremely crushed and disappointed,” he said of the Court of Appeal verdict. “I never walked away from saying I owed this.” Mr Butler asserted to Tribune Business that AML Foods had already succeeded on appeal in appointing a receiver, Ed Rahming, the accountant and founder of Intelisys Ltd, to take control and possession of his 25 percent interest in his family's trust as a means to secure repayment of the $862,287.

“They have a receiver, they have guaranteed money against my share of the trust, and my trust has more than enough,” Mr Butler asserted. “The trust is a discretionary trust, and does not mature until 2033, but there is a distribution of $250,000 that they are going to get. The total bill is $1.3m, approaching $1.4m. The assets are there.” A discretionary trust means that beneficiaries, such as Mr Butler, have no control over the assets or when distributions are going to be made.

As a result, and implying that the debt owed to AML Foods is more than covered, Mr Butler argued: “I do not feel this was worthy of disbarment.. I’m not going to say this was personal or anything like that. I don’t want to sound bitter. I have a constitutional motion challenging this. I’m not as depressed as you may think. I’m not giving up the fight.

“I’m not running away. I’m never run away from owing AML the money. I don’t think the penalty fits the crime. I’m extremely disappointed but I will continue the fight. There is a path I can take, and I’m holding my head high. I’m holding my head high. I am paralysed from the weight down, have six children to support and they have taken away my livelihood. That’s what hurts the most.”

The Court of Appeal, in the verdict written by justice Gregory Smith, said AML Foods had accused Mr Butler “of professional misconduct in respect of his misappropriation of the sum of $862,287. This money was part of the funds transferred to the appellant, who was acting on behalf of the complainant in respect of the purchase of property and accompanying expenses.

“The complainant [AML Foods] had obtained a judgment against the appellant for the sum of $862,287, but to date, the complainant has not recovered any part of this debt.” At the hearing before the Bar Council’s disciplinary tribunal, Mr Butler “acknowledged that he had been guilty of professional misconduct in respect of the misappropriation of the sum of $862,287.

“His counsel indicated that the appellant only wanted to be heard in respect of the sanction to be imposed for his professional misconduct,” the Court of Appeal added. “The [tribunal] duly entertained his counsel’s submissions and also those of the respondent. Pursuant to its powers under section 38(1) of the Legal Profession Act, chapter 64, the respondent decided that the appellant be struck off the Roll of the court as counsel and attorney.”

Mr Butler appealed against the strike-off decision, which bars him from practicing as an attorney. The Court of Appeal noted Mr Butler’s plea to the tribunal, made by his then-attorney, that he had “sufficient assets available to cover the debt, and he has fully co-operated with the tribunal and attended all hearings despite health challenges”.’

However, the tribunal determined that “the client’s monies are sacrosanct and should not be used by the attorney for any purpose other than what they were provided for. The client’s monies are certainly not to be used for the attorney’s purposes no matter the ‘dire needs’ or circumstances in which the attorney may find himself.

“The punishment for such conduct must be such that it will deter others from engaging in such conduct. The conduct of [Mr Butler] is not conduct befitting of counsel and attorney, in particular as a senior member of The Bahamas Bar… A clear message must be conveyed that such conduct is intolerable.”

The Court of Appeal, in its rejection of Mr Butler’s appeal, said it found “no fault” with the disbarment punishment and ruled it was not disproportional. Mr Butler argued that his health and “capacity”, as well as the intent to make AML Foods whole, were mitigating factors that should have weighed against such sanctions, but the appeal court said only a “bare and fleeting” reference was made to his health woes when he told the tribunal “I was sick in many ways, physically and mentally”.

As a result, the Court of Appeal said the tribunal was entitled to ignore this, while adding that the passing of Mr Butler’s nephew was also not a factor for consideration. “I also need to mention that, in his over-expansive submissions, the appellant brazenly purported to refer to e-mails and letters in support of his allegations of ill health and incapacity,” appeal justice Smith wrote.

“This was wholly unacceptable. This was, in effect, an attempt to put documents before the court via the back door when they could not be considered via the front door. Even worse, the appellant was well aware that the respondent objected to the admissibility of any fresh evidence that was not before the tribunal, and the attempt by a senior attorney to do so in submissions was simply wrong.”

The Court of Appeal also dismissed examples of infractions by other Bahamian attorneys, cited by Mr Butler as showing the punishment meted out to him was excessive. And it rejected his complaints that that the tribunal was unfair in its procedures and discretion in coming to the decision it took.