This 2016 BU log is highlighted to respond to the page 3A article in today’s Sunday Sun (posted in BU’s comment Box below- Blogmaster
BU continues our spotlight on the Barbados Bar Association (BA) and the Disciplinary Committee (DC), in particular the little known Compensation Fund (CF). The CF can easily be compared to the useless Catastrophe Fund (CF#2), government recently made a decision to transfer the balance outstanding of 35 million dollars to the Consolidated Fund (CF#3). The BA’s website provides the following information on practicing certificates. There are only two references to the CF.
FEES PAYABLE TO THE REGISTRAR OF THE SUPREME COURT:
Practising Certificate-$ 2500.00
Practising Certificate – (Queen’s Counsel)- $ 2500.00
Compensation Fund- $ 200.00
AND:
Q. What are the fees payable prior to admission?
A. (a) Cheque (or cash) payable to Barbados Bar Association.
Less than 5 years $293.75
5 years and over $440.63
10 years and over $625.10
15 years and over $625.10
20 years and over $1175.00
Queens Counsel $1562.75
(b)Separate Cheques (or cash) payable to The Registrar of the Supreme Court
$200.00 – Compensation Fund – mandatory.
$2500.00 – Professional Registration Fee – [manadatory].
N.B. we only accept cash or cheque no debit or credit cards
NOTE: The standards of professional competence of the BA seems to exclude a spell-check that allows it to spell “mandatory” correctly. This is very encouraging if we consider competency as a measure.
Apart from that, there is no part of the BA’s website that explains the CF. See BU’s search string. There is absolutely nothing in a Google search from the BA to explain the CF. The Legal Professions Act states, inter alia:
50. (1) Where it is proved to the satisfaction of the Bar Association that any person has sustained loss in consequence of dishonesty on the part of an attorney-at-law or any clerk or servant of an attorney-at-law in connection with that attorney- at-law’s practice as an attorney-at-law or in connection with any trust of which that attorney-at-law is a trustee, then, subject to the provisions of this section, the Association may, if it thinks fit, make a grant to that person out of the Fund for the purpose of relieving or mitigating that loss.
(2) A grant may be made under this section whether or not the attorney-at-law had a Practising Certificate in force when the act of dishonesty was committed, and notwithstanding that after the commission of that act the attorney-at-law has died or had his name removed from the Roll, or has ceased to practise or been suspended from practice.
(3) On the making by the Bar Association of any grant under this section to any person in respect of any loss-
(a) the Association shall to the amount of that grant be subrogated to any rights and remedies in respect of that loss of the person to whom the grant is made or of the attorney-at-law, clerk or servant; and the person to whom the grant is made shall have no right under bankruptcy or other legal proceedings or otherwise to receive any sum out of the assets of the attorney-at-law, clerk or servant in respect of the loss until the Association has been reimbursed the full amount of its grant, and in paragraphs (a) and (b) of this subsection reference to the person to whom the grant is made or to the attorney-at-law, clerk or servant includes, in the event of his death, insolvency or other disability, a reference to his personal representative or any other person having authority to administer his estate.
(4) The Bar Association may make rules with respect to the procedure to be followed in giving effect to the provisions of this section and of the Sixth Schedule and with respect to any matters incidental, ancillary or supplemental to those provisions or concerning the administration or protection of the Fund.
(5) No grant shall be made under this section in respect of any loss unless notice of the loss is received by the Bar Association in such manner and within such time after the loss first came to the knowledge of the loser as may be prescribed by rules made under subsection (4).
(6) For the purposes of enquiring into any matters which may affect the making or refusal of a grant under this section, the Bar Association or any committee appointed by the Association and authorised by it to exercise any of its functions under this section or to assist it in the exercise of any such functions may administer oaths.
In other words, the BA has the right to make a grant out of the CF, but if the complainant then is paid back the sum claimed from the attorney, they must refund the BA the amount the BA granted them out of the CF. This seems a fair position.
Note that in the Google search above, apart from the opaque reference to the CF on the BA’s website, the ONLY references to be found are to BU’s publications on the matter of the CF. The only substantive explanation BU can offer comes from Mrs Woodford-Riley QC, head off the DC which states, inter alia:
“I recall you had raised the issue of the compensation fund. In my opinion the existing provisions do allow the compensation fund to make payments with the provisos that it may require the applicant to pursue civil or criminal or disciplinary proceedings. It does then have something to do with our committee and we do give priority hearings to complaints involving funds. However the legislation limits our powers to a finding of professional misconduct and the ability to recommend removal, suspension, fine, reprimand, order for payment of costs. An Order by the Court of Appeal supporting our finding of professional misconduct would then be supportive of a claim to the fund. Action through civil proceedings is also an effective way to obtain a resolution and support a claim to the fund.”
We reflect on: “In my opinion the existing provisions do allow the compensation fund to make payments with the provisos that it may require the applicant to pursue civil or criminal or disciplinary proceedings.” What if the attorney is impecunious? Is it being suggested that a complainant, already burdened by financial loss attributable to some dishonest lawyer be required, at the complainant’s expense, to bring civil proceedings, with the legal costs, delays etc. to further screw up their lives? As for bringing a criminal action, surely that is a matter for the DPP to decide and prosecute, not the victim of a theft and breach of trust by a ‘teefing’ lawyer and, often, member of the BA? What makes their crime of theft different from those incarcerated at Dodds? read Speaker Michael Carrington. That they are lawyers and therefore must be deemed to have known what they were doing was criminal? Surely that makes it worse and even more deserving of a custodial sentence? What the hell are the Police and the DPP doing? Creating an immunity to prosecution to which only the Queen is lawfully entitled? Should we start addressing lawyers as “Your Majesty”?
We accept that the DC cannot order payment out of the CF, but what prevents it, in cases of hardship, from recommending it in its findings to the Court of Appeal and what prevents the Court of Appeal from passing on the recommendation in its judgement.
BOTTOM LINE: Due to a lack of transparency on the part of the BA and the justice system, complainants have probably never realised that they could make a claim under the CF and their lawyers sure as hell are not telling them about it. This has allowed the BA to grow and maintain its nest egg of now well over $2 million without ever making any payment at all, except to advertise the estates of deceased attorneys.
We want to make it clear that, until she proves us wrong, we have the greatest respect for Mrs Woodford-Riley QC, the head of the DC and we are encouraged to look forward to far-reaching changes to the efficiency, speed, transparency and the way the DC operates under her (recently appointed) leadership. As always BU will be closely monitoring and sharing feedback to our readership.
The blogmaster invites you to join the discussion.