COLUMN – Lawyers and their clients . . .
People are still keep getting confused about the role of the Barbados Bar Association (BBA) vis-a-vis the general public. For the avoidance of doubt, the BBA is akin to a trade union, it does not owe any duty to anyone other than its members, otherwise known as lawyers or attorneys-at-law. It does not owe a duty to the clients of any particular lawyer
The Bar Association was incorporated by an act of Parliament, namely the Barbados Bar Association Act, Cap. 363 of the Laws Of Barbados. Pursuant to that act, the rules of the BBA were also enacted and state as the aims and objects of the association, amongst other things:
2. (a) to support and protect the character, status and interest of the legal profession generally and particularly attorneys-at-law practising
in Barbados; . . .
(c) to maintain the honour and independence of the Bar and the defence of the Bar in its relation to the judiciary and the executive; . . .
(f) to promote and support law reform, law revision and
(g) to further good relations and understanding between the Bar and the public; . . .
(k) to protect the public right of access to the courts and representation by attorneys-at-law before courts and tribunals; . . . and
(q) to establish group insurance schemes for professional purposes.
It is the individual members of the association in their capacities as attorneys-at-law who in fact owe certain duties to their clients, the profession, the public and the administrative justice system. Rules 24 through 39 specifically outline the duties of an attorney to his clients. The rights and responsibilities of the attorney to his client are as follows:
1. To act in the client’s best interests within the bounds of the law;
2. To obtain “full knowledge” of the facts surrounding a client’s case and to give a full and frank opinion on the merits and demerits of that case and the probable outcome; 3. To refrain from giving “bold and confident assurances” to the client;
4. To advise the client to settle or to avoid litigation altogether where the circumstances dictate;
5. To disclose any conflicts of interest to the client;
6. To “scrupulously guard and never divulge his client’s secrets and confidences” ;
7. To treat the opposing lawyer, litigants and witnesses with “fairness and courtesy”;
8. To avoid allowing his client’s “personal feelings and prejudices” to influence his professional judgement;
9. To defend anyone accused of a crime without reference to his own personal opinion of the guilt of the accused and “to present every defence that the law of the land permits, so that no person may be deprived of life or liberty except by due process of law”;
10. To avoid representation of multiple clients in the same matter where each person’s interests cannot be adequately represented;
11. To deal with the client’s business with “all due expedition” and to update the client on the progress of the matter when “reasonably so required by the client”;
12. To avoid accepting a matter if the attorney cannot deal with it without undue delay;
13. To refer in whole or in part a client’s matter to another attorney where the client’s interests require it and with either the specific or general consent of the client;
14. Where more than one lawyer represents a client in a matter to determine with the instructions of the client who will be the lead attorney;
15. An attorney is entitled to “reasonable compensation for his services”, but should avoid overcharging for or undervaluing his work;
16. The fees charged by an attorney should not depend on the wealth or poverty of the client, although a client who is indigent may require a reduction in the fee;
17. To avoid controversies with clients in respect of fees;
18. The attorney has the right to demand a retainer and payment for out-of-pocket expenses and can withdraw his services or refuse to take the case if payment is not made, except where irreparable damage may be done because there is not enough time to secure alternative representation. The rationale is that it is the client’s matter and therefore the costs associated are for the client’s account;
19. An attorney should not appear as a witness for his client except in relation to purely formal matters. In other words the lawyer should not become embroiled in the client’s saga. If he must be a witness then conduct of the case should be passed
to another attorney;
20. An attorney may withdraw his services where the client fails in his obligation to pay fees and expenses; where the attorney’s inability to work with colleagues on the other side jeopardizes conduct of the client’s case; where the client freely consents to termination of the relationship; where for physical or mental health reasons he cannot continue; and in cases of conflict of interest.
(Alicia A. Archer is an attorney-at-law.)