By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A “bankrupt” attorney who failed to “perfect security” for a BISX-listed lender’s 50 mortgage loans, worth a combined $6m, yesterday saw his banishment from the legal profession upheld.

Justice Milton Evans, the Court of Appeal president, in a unanimous verdict backed the Bahamas Bar Council’s disciplinary tribunal over its decision to disbar Raymond Rolle, a former FNM election candidate.

The three appeal judges found Mr Rolle, who failed in both attempts to become Englerston’s MP in 2007 and 2017, was “negligent in the supervision of his firm” and the damages caused to clients resulted directly from that.

And “the fact he has been declared bankrupt” means Mr Rolle is unable to properly compensate his clients, including Finance Corporation of The Bahamas (FINCO), Royal Bank of Canada’s (RBC) publicly-listed mortgage lender, for the losses they have incurred.

The Court of Appeal recalled that Mr Rolle’s disbarment stemmed from complaints submitted against him by RBC FINCO dated July 4, 2019, and January 14, 2020. The mortgage lender alleged that he had been hired to represent it in 31 separate mortgage transactions, with the sums involved paid over to him.

Ultimately, the BISX-listed entity claimed he failed to safeguard its interests by not perfecting security collateral for 50 mortgage loans, and also “failed and/or refused to obtain the necessary consents and/or approvals” for 34 loan files.

“The appellant [Mr Rolle] was engaged to represent RBC in over 31 loan transactions, which required him to review and approve title for the underlying security, as well as the management of the loan proceeds which were to be used for the purchase of the underlying security, inclusive of the stamping and recording of all title documents,” the Court of Appeal recorded.

“RBC produced an affidavit in support of the complaint by Ericka Rolle, the managing director of RBC, filed on January 14, 2020. The Rolle affidavit produced a series of engagement letters detailing the expectations of the appellant for the various transactions amounting to approximately $6m in mortgage loans.”

RBC FINCO had alleged: “To date, out of the mortgage files within the conduct of the attorney, the attorney has acted without due diligence through his action or inaction.” And the bank’s efforts to contact him “to remedy the situation on several occasions” had proven fruitless.

“Most recently, on August 31, 2018, Fanchon Braynen, senior manager, transformation, attended the attorney’s office after making an appointment to meet with him. When she arrived, and apprised the secretary of the purpose of the visit, she was subsequently advised that the attorney had a family emergency and had to leave. All further attempts to make contact has proved futile,” RBC FINCO added.

“Our institution is seeking from the attorney the return of all outstanding title documents being executed, stamped and recorded and/or, in the alternative, all original documents executed, unstamped and unrecorded along with all relevant funds and late fees to-date to have the same stamped and recorded. To date, the mortgagee’s/lender’s interest in, and the enforceability of, its security via mortgage remains uncertain and in jeopardy.”

RBC FINCO’s complaint was advanced by the Bar Council’s ethics committee to the disciplinary tribunal on November 18, 2019. The tribunal, in a February 15, 2023, ruling found Mr Rolle “guilty of improper conduct in contravention of provisions of the Legal Profession Act” and ordered that he be struck off and disbarred.

That was not the only complaint made against Mr Rolle. Michael Preuss, a purchaser of real estate on Rum Cay, had eight years earlier on July 18, 2011, demanded that he return client funds worth $192,870 that were paid in 2007 to assist with the acquisition.

“The appellant [Mr Rolle] asserted that the complainant had entered into an agreement with John Demming and Rum Cay Ventures for the property and engaged the appellant to represent all parties in the transaction. A conveyance was prepared for execution, and the sale proceeds were received and remitted to the vendors,” the Court of Appeal noted.

“The appellant contended that delays in completing the transaction were primarily due to the complainant’s failure to provide KYC (Know Your Customer) documents required by the Foreign Investment Board. Nonetheless, the appellant unsuccessfully sought to resolve the matter by having the vendors rectify any deficiencies and re-execute the conveyance.”

The unresolved dispute was again forwarded to the Bar Council’s disciplinary tribunal, which delivered its second “improper conduct verdict against Mr Rolle on the same day as the RBC FINCO decision. However, the attorney appealed both rulings on the basis it was “too harsh” to disbar him and no “satisfactory reasons” were given for the tribunal’s decisions and assessment of evidence.

Mr Rolle, while admitting guilt to a certain extent, backed his arguments in his submissions to the Court of Appeal. “The appellant wants to contend before this court that while he should have been punished for the manner in which he conducted his practice, the punishment of disbarment was and is too extreme,” his submissions argued.

“It is his contention the he should have been expelled or suspended with conditions inclusive of requiring him to repay to his client, who has suffered loss of the money lost and/or damages with respect thereto under Section 38 of the Legal Profession Act 1993.”

However, Sean Moree KC, representing the Bar Council, argued that Mr Rolle “fails to establish any legal or factual basis to overturn the decision of the tribunal” and had “admitted to serious lapses in his practice, which has resulted in extreme prejudice to countless individuals, borrower and lender alike”.

“There are millions of dollars which remain unaccounted for and scores of title/security documents which have yet to be disclosed, much less stamped or recorded,” Mr Moree added. “The appellant’s misconduct persisted over several years.

“He received and mismanaged millions of dollars which were client funds. We still do not have an accounting of the same. Furthermore, he has created a legal quagmire for vendor, purchaser and lender in many of the transactions with no resolution in sight.”

Mr Rolle, in his appearance before the Bar Council’s disciplinary tribunal on the RBC FINCO matter, blamed difficulties with his landlord for disrupting “access to his former work premises” and an attempt to retrieve the outstanding mortgage documents.

Some 30 were still outstanding as at November 10, 2021, and Mr Rolle further “explained that he had an employee who absconded with funds while in his employ, and that there was a police investigation underway and that a civil suit had been filed and judgment entered for $120,000 against the employee.

“He also advised that between 2007 and 2009 he was involved in ‘another arena’, which the Tribunal understands to have been a political foray. While he maintained professional indemnity insurance with JS Johnson, they had declined to cover this particular claim,” the tribunal added.

“While the tribunal is not entirely unsympathetic to the fact that there was an employee of the attorney engaged in unscrupulous and potentially criminal activity, this does not exempt or excuse the attorney from the duty or obligations that he has to his client. A system of checks and balances must be in place to safeguard against abuses within a firm, and proper oversight at all times by an attorney of his staff is expected.”

Noting the “wholesale nature of the failures” by Mr Rolle in the RBC FINCO matter, the tribunal described the breaches as “the most serious and egregious sort”. A similar finding was made in relation to the complaint by Mr Preuss.

Appeal president Evans, in upholding the tribunal’s verdict, asserted: “This is an unfortunate case, as is every case where an attorney loses the position which he has strived hard to obtain. However, consequences flow from decisions and actions that fall far short of the standard expected from persons granted the opportunity to serve the public as honourable members of the Bar......

“In my view, it is not possible to find that the disciplinary tribunal acted unreasonably in determining that disbarment was the appropriate sanction in this case. The appellant was negligent in the supervision of his firm and the damages to his client are a direct result of that fact.

“Secondly, notwithstanding the passage of time, he has been unable to rectify the harm sustained by his clients and there is no discernible timeline in which such rectification could take place. The fact that he has been declared bankrupt, as noted by the tribunal, is also a factor because it underscores his inability to meet the requirement of full compensation,” appeal president Evans added.

“As such, to allow the continuation of his practice is a risk to the public. It is always possible that if he is able to rectify his default the appellant can apply to be reinstated. However, I cannot say that the tribunal was wrong to find that a suspension in the circumstances of this case was not the appropriate sanction.”