The latest report emanating from Adriel Brathwaite on amendments to the Legal Professions Act has appeared in several news outlets. For those who have not read about it, here is one such report.
The truth is that these amendments will be as much use as trying to stick a plaster on a gaping abdominal wound. They are merely a political ploy to make it look as if Adriel Brathwaite is actually doing something so that the electorate will feel that he is deserving of his salary as an MP. And, of course, allowing him – some refer to him as Nitwit – to jump on the BU bandwagon in decrying the BA and the entire justice system, which now has come into fashion in politics as if it is the idea of each and every politician who spouts off about it. We have never heard one of them give BU any credit – but never mind, we can live with that – we are an anonymous blog and service to the country.
A quick look at how things operate in other jurisdictions, a look that Brathwaite could have taken himself, provided he is computer literate.
ENGLAND AND WALES:
In England and Wales, the qualifications to practice as a solicitor are determined by the Law Society, which as a result vests in the Law Society the right of discipline, without recourse to any Court of Appeal – although the solicitor concerned can appeal a decision by the Law Society.
Here is what the Law Society has to say on its website about complaints. These complaints can also be made directly to the Solicitors Regulatory Authority (SRA). We recommend that everyone read this link and advert your particular attention to the part dealing with the Compensation Fund, which will resonate loudly with far too many dissatisfied clients in Barbados. It will also be noted that the SRA has the authority to close a firm and take possession of its accounts and documents, so that if, for example, a solicitor is withholding your documents, the SRA can and DOES force that solicitor to give them back to you.
In England and Wales, the Law Society also mandates that solicitors are obliged to take out professional indemnity insurance.
The Law Society of Upper Canada determines who and who cannot practice law in Ontario and, therefore, determines and applies disciplinary measures – see link.
The LSUC also has a Compensation Fund. However, be warned that, lacking an organization such as the UK’s SRA, in Ontario it takes ages for complaints to be addressed and dealt with, which is why they fudge the issue on their website and therefore for the Compensation Fund to kick in.
It is also to be noted that all Ontario solicitors must have personal liability insurance cover through LawPro. This insurance in both the UK and Ontario, provides that if you take a lawyer to court and win, it pays not only the lawyer’s legal fees and your legal fees, but also, up to a certain amount (I believe it is the equivalent of BBD$1.25 million) of any awards the court might make.
So compensation for the aggrieved and the costs of obtaining redress, other than trying to fruitlessly pursue and bankrupt attorney, is addressed by these countries.
In Barbados, the BA does not determine qualifications or to whom practice certificates are issued. That is the right of the executive. And it is clear that membership of the BA is certainly not mandatory The BA cannot discipline, but may only make recommendations to the Court of Appeal. This prolongs an already retarded and cumbersome process.
Why can the Legal Professions Act (in Brathwaite’s amendments) not establish under the same authority that determines qualifications and issues practicing certificates, a disciplinary body with the power to enforce disciplinary measures? It isn’t nuclear science is it?
The truth is that as it stands, the BA has cocked up the whole concept of the Disciplinary Committee. The Legal Professions Act specifically states that members of the Committee are to be “NOMINATED” by the executive. However, guess what? The BA’s executive does not nominate members, it has them elected by the membership, no doubt preparing those aspiring to be members of the DC for later general elections.
The framers of the Act showed great wisdom in using the word “NOMINATE”. It allows for lack of conflict of interest in that it allows the executive to NOMINATE retired judges and attorneys, rather than having brethren sit in judgement on fellow brothers. It is also true to say that the senior attorneys NOMINATED ought to have extensive criminal law experience, as they have far more experience with the weighing and assessment of evidence. This too is common sense, as long as you know the difference between “nominate” and “elect.
At the end of the day, the only amendments to the Legal Professions Act that stand a chance of dealing with the matter of discipline is to remove it completely from the BA and into the purview of the authority that determines who can and who cannot practice law in Barbados and to give that authority the right to discipline without recourse to the Court of Appeal and also to give it the Compensation Fund to administer and make payments out of. Otherwise, the general public will think that these Nitwit amendments are merely designed for political gain and mileage and will not benefit them at all – and they will be RIGHT!
However, there is absolutely nothing that says that the Legal Professions Act cannot establish a separate entity, not under the umbrella of the BA, to deal with disciplinary matters and with the Compensation Fund and to disbar without having to waste more time going to the Court of Appeal (or, more commonly, not) after decisions that at best smack of bias.
So Mr. Attorney General now that you know how it works in other countries feel free to use BU to lobby and put on pressure for workable amendments to the Legal Professions Act, instead of just a political sticking plaster on a gaping abdominal wound.