John Timakata was suspended from practising law for three months beginning mid-September and fined VT300,000 by the Law Council Disciplinary Committee. He was found to have acted unethically after he unlawfully obtained and withheld dozens of lease documents in order to force a client to pay what they called a “grossly inflated and out of proportion” VT8 million legal fee.
His suspension ends in a little over a week.
Mr Timakata is best known for his work in prosecuting the case against 14 Members of Parliament charged with Bribery. In June this year, he was recommended by a multi-party group of Emae islanders as their choice for VP candidate in the 2020 election.
The Disciplinary Committee report was published on the Pacific Legal Information Institute’s website in late October. It was seen by Daily Post staff yesterday. They were unable to find a copy on the Judiciary website.
Former DG of Lands Joe Ligo was also referred for investigation by the Public Prosecutor for his conduct in the matter.
The decision states, “In our view, his [Joe Ligo’s] threatening of the Minister was quite reprehensible and unbefitting a senior and high-ranking civil servant. However, we ask the Public Prosecutor to consider whether or not Mr Ligo should be criminally charged for his conduct, which the Committee apprehends must be contrary to his terms of employment, in improperly releasing the 79 leases, seemingly to assist Mr Timakata to collect his fees.”
The original complaint relates to a series of events that occurred between late 2013 and the end of 2014. It involved a Santo-based real estate company, La Société Immobilière des Iles du Nord Limited.
The complaint alleges that Mr Timakata “[p]rocured the commission of a criminal offence, namely the inappropriate removal from the Lands Records Office of 79 deeds of lease by aiding, counselling or procuring Mr J. Ligo, the Director-General of the Ministry of Lands, Geology, Mines, Energy and Rural Water Supply, to so act contrary to section 109(2)(b) of the Land Leases Act”.
It further alleges that Mr Timakata breached his professional ethics by dealing directly with the client when he knew that the company was being represented by Robert Sugden, a well-known local lawyer.
Mr Sugden assisted the committee in its investigation of the matter.
The committee report lays out a timeline of events relating to the creation of a subdivision on the border of Pekoa airport. A single property was subdivided into 79 leaseholds, and as a result, each one had to be processed, registered and have all relevant fees paid. If they weren’t processed in time, late fees and penalties would have cost well into the millions.
The leases were signed off and submitted to the Minister of Lands for the necessary consents in January 2014. In May, they were returned to the Minister for signing, following approval from the Solicitor General. By August, however, the documents had still not been signed, so Mr L. Carlot, a representative for the Société Immobilière, met with Mr Timakata and asked if he would be able to help expedite the matter.
Mr Timakata agreed to make preliminary inquiries, and “indicated that due to the urgency and magnitude of the task he would not charge at his usual VT20,000 per hour rate, but charge a flat fee of VT8 million for his services.”
Mr Timakata’s intervention appears to have got results. “On 27 August 2014, the Minister signed-off on the 79 leases and returned the completed documents to the Director-General of the Land Records Office, for him to return them to the person who had lodged them. The process then is for the lodging person to get stamp duty assessed and paid, and to then return the deeds with the relevant fees to the Land Records Office for registration to be completed.”
The same day, “Mr Carlot and Mr Timakata went to the Land Records Office and uplifted the 79 leases. Mr Timakata retained custody of the 79 lease deeds.”
This, the report notes, is “The criminal offense alleged.”
The next day, Mr Timakata sent a bill to the Société Immobilière, demanding VT 8 million.
On the same day as the bill was created, a person went to the Ministry of Lands, and “asked Mr Ligo for the lease documents. He was told that Mr Timakata had them. When he asked: ‘Why is that?’ Mr Ligo responded: ‘There are some fees to be paid.’”
When the company owners visited Mr Timakata to try to retrieve the documents, “Mr Timakata made it plain that he would only release the deeds once his invoice had been met; and he eventually asked them to leave his office.”
A curious exchange then arose between the Minister of Lands and then-DG Joe Ligo. “On 5 September 2014, the Minister wrote an email to Mr Ligo, having heard of this from Mr de Montgolfier, asking how Mr Ligo was going to address the problem of having wrongly given the files to Mr Timakata, and suggesting that if all else failed Mr Ligo ought to get the police involved. Mr Ligo responded to the effect that he was going to meet with Mr Timakata and pointing out that Mr Timakata was entitled to his outstanding fees. He then warned the Minister to not ‘...complicate this further or I will look for other options to ENFORCE my Minister’s Constitutional Right to Refusal to grant consent.’”
When all the facts were considered, the Disciplinary Committee’s report states, “the overall picture presented is that Mr Timakata and Mr Ligo were working very closely together, to not only get the desired result, but also to get Mr Timakata’s fees paid.”
The Société Immobilière retained lawyer Robert Sugden to resolve matters, and agreed to lodge the VT 8 million with the Supreme Court Registrar, pending a resolution.
Nonetheless, a meeting apparently facilitated by the VNPF (who were anxious to get the matter resolved) was arranged between Mr Timakata and the owner of the Société Immobilière, in which a settlement was reached. Mr Timakata would receive VT2 million, and the matter would end there. He was paid immediately.
The Committee notes that it is “unprofessional and unethical conduct” for a lawyer to meet with a party to a dispute when they know that party has retained counsel. This behaviour is completely prohibited, the report states. “While Mr Timakata did not deliberately put himself in that position, he quite improperly took advantage of the situation.”
Elsewhere: “Mr Timakata frankly acknowledged that he had wrongly uplifted the leases”. It goes on to state that, “He acknowledged further that he should not have spoken” with the complainant without his lawyer’s knowledge or consent.
The report also states, “The Committee takes a very dim view of a senior practitioner involving himself in matters where the criminal law may well have application. As the complaint alleged, Mr Timakata could face prosecution under section 109(2)(b) of the Land Leases Act. He could also face prosecution, together with Mr Carlot and/or Mr Ligo under section 30 of the Penal Code”.
Section 30 of the Penal Code deals with Complicity: “Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender.”
The Committee found: “In respect of each of the two complaints, the Committee unanimously fines him VT150,000. The total amount of VT300,000 is to be paid within 21 days.
“Further, the Committee gave serious consideration to striking Mr Timakata off the rolls of practising members of the profession. His previous good character, coupled with the delay between complaint and result, has persuaded the Committee to not so act on this occasion, but to suspend him from practice for a period of 3 months, as from the date of this decision. This type of conduct requires a response of a deterrent kind. The Committee considers the 3-month term to be least possible time for suspension.”