Bar Council complaint over lawyers’ police interview over failed Par la Ville hotel
A developer who faced criminal charges over a failed Hamilton hotel project has made a complaint to the Bar Council about his former lawyers.
Michael MacLean, who had all the charges against him dropped in the Supreme Court in January 2019, filed the grievance against Johann Oosthuizen and Richard Horseman, of Wakefield Quin law firm, in April.
He alleged the pair gave an interview to the police on May 2, 2017 which breached client confidentiality and led to him and his wife Yasmin being charged with theft and dishonesty.
Mr Horseman, a director at Wakefield Quin, told The Royal Gazette the law firm disputed the complaint.
He added: “A full defence has been mounted. There are many inaccurate and untrue allegations contained in the complaint.”
He said he could not comment on the case because section 25 of the Bermuda Bar Act requires Bar Council disciplinary proceedings to be kept confidential.
The hotel project involved a loan of $18 million from Mexico Infrastructure Finance to Par-la-Ville Hotel & Residences, which was intended to help the developer get funding to build a multimillion-dollar hotel and residences on the site of Hamilton’s Par la Ville car park.
The loan was guaranteed by the Corporation of Hamilton after Parliament amended the law to allow the corporation to use the car park as collateral.
But PLV later defaulted on the loan, which sparked a civil action by MIF to recover the funds and a police investigation.
Mr MacLean, the president of PLV, faced criminal charges, along with his wife, former Hamilton mayor Graeme Outerbridge and City Hall secretary Ed Benevides.
All the charges against the four were dismissed by a Supreme Court judge, who ruled there was not enough evidence against any of them to go to trial.
Mr MacLean wrote in his complaint to the Bar Council that Mr Horseman e-mailed him on March 15, 2017 to ask for permission to conduct an interview with the Bermuda Police Service.
The Royal Gazette has seen Mr Horseman’s e-mail.
The lawyer wrote: “The police want to interview Johann about the parking lot/hotel deal.
“We do not have a lot of information to offer but as you were our client we were concerned about client confidentiality as we could be subject to a complaint by you if we discussed your matters.
“Can you confirm whether you are okay with us speaking to the police.”
Mr MacLean said in his complaint: “At no time did I give Mr Oosthuizen or Mr Horseman express or implied consent to conduct an interview with the BPS, nor did I provide Wakefield Quin express or implied consent to disclose information gained during the course of my client-attorney relationship with them.
“Notwithstanding this, on May 2, 2017, Mr Oosthuizen and Mr Horseman conducted a witness interview with BPS.”
Mr MacLean said the interview was “relied upon by the BPS and the Department of Public Prosecutions as primary witness evidence against me personally, resulting in me and my wife being charged with indictable offences before the Supreme Court of Bermuda”.
PLV went into liquidation in 2015.
Mr MacLean said he expected the lawyers to argue that they did not act for him personally or hold documents belonging to him and that they had permission from PLV’s joint provisional liquidators to release the information to police.
But he said Mr Oosthuizen was his personal lawyer for years, including for a time before he worked at Wakefield Quin, and that Mr MacLean was the director and sole instructing party for PLV.
Mr MacLean wrote: “I respectfully suggest that when considering this complaint and any subsequent response from the attorneys, the committee consider the legal principles of joint retainer, joint privilege, joint interest and common intention privilege.”
He alleged that the attorneys breached the Barristers’ Code of Professional Conduct and brought the profession into disrepute.
Mr MacLean’s complaint, dated April 13, 2020, has to be referred by the Bar Council to its professional conduct committee, which will decide whether to hold a disciplinary tribunal committee hearing.