Not CJ’s call

Sadly, for me at any rate, the legal profession is one of the most vilified in Barbados, if not the world and probably second only to politicians. Humans thrive on scandal and the Bar Association and its members have apparently offered more than their fair share in recent times.

First, there was the non-payment of the annual subscription and then the “mooning” of a judge and subsequent events. Let’s do a round-up.

In Part VII of the Legal Profession Act, Cap. 370 under the rubric Compulsory Membership of the Bar Association, Parliament in its infinite wisdom set out the requirements for the holding of a valid Practising Certificate which must be renewed each year. Section 44 provides that: “An attorney-at-law shall, on each occasion a Practising Certificate is issued to him, pay to the Bar Association the annual subscription which is or would be payable by him under section 45 as a member of the Association and shall thereupon … become … a member of the Association.”

Section 45(3) goes on to provide that: “A Practising Certificate issued to an attorney-at-law shall be of no effect until the annual subscription required by section 44 has been paid.”

Basic comprehension skills would indicate that in order for the Practising Certificate to be valid the annual fees payable to the Bar Association must have been paid. However, as lawyers, splitting hairs is what we do a lot of the time and if you put 10 lawyers in a room you will get 10 different interpretations of the same phrase.

This, in my humble opinion, is not one of those cases where room has been left for interpretation. This becomes more cogent when looked at in light of section 10(2) of the Act which states that, “Subject to any other enactment to the contrary, no person may practise law unless he is the holder of a valid Practising Certificate”. Practising law without a valid licence is a criminal offence by virtue of section 11.

Further, a person who practises law without the requisite certificate “is not entitled to maintain any action for the recovery of any fee on account of or in relation to any legal business done by him in the course of such practice” as prescribed by section 10(3).

What that translates to is that if you run up a bill for legal fees of a billion and one dollars and the attorney’s practising certificate was invalid you don’t have to pay them a cent because they cannot sue you in court to get it back.

Good luck to my “colleagues” who think that practising in this fashion is a good idea. I appreciate feeling safe in the knowledge that one way or the other I will be paid for work done and fees charged so that I can in turn pay at the supermarket checkout and turn on the lights in my house.

In relation to the other issue mentioned, let me state up front that offensive conduct should never be part of one’s repertoire especially for those in a profession who should be able to wield language like a weapon. That being said, I was more than a little surprised at the reports that the Chief Justice had indicated that he would be investigating the attorney’s conduct which is problematic on several levels.

First, the Chief Justice as Chairman of the Judicial and Legal Services Commission under section 89 of our Constitution has responsibility over judges, not attorneys-at-law. Section 18 of the Legal Profession Act gives that responsibility to the Disciplinary Committee of the Bar Association.

The Chief Justice has absolutely no authority to discipline anyone unless the Disciplinary Committee has held a formal hearing and decided as set out in section 21(1) of the act that “a case of professional misconduct has been made out against an attorney-at-law” and then forwards that decision to the Chief Justice in a report including the committee’s recommendation as to the sanction merited. The Court of Appeal and not the Chief Justice then makes the final decision as to what is to be done.

Second, the procedure for the laying of the complaint is set out quite clearly in the act and must be followed. Practitioners of the law argue cases of fairness, natural justice and legitimate expectation everyday and the requirement of proper procedure should come as a shock to no one unless they are begging for the Government to have to write a big fact cheque.

Add to that the fact that having taken place outside court this matter does not qualify as contempt. Punishment for contempt is a long and involved procedure involving an actual trial. Even if this matter had taken place in open court it would be for the judge involved to determine the matter which is a matter of law that has been established from time immemorial.

What I would like investigated is the mystifying and convoluted nature of the Registration Department’s bureaucracy and the actual conduct of business at the courts. That would be significantly more helpful to Barbadians of current and future generations.

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