RAISING THE BAR: Roles of Disciplinary Committee and Bar
This article seeks to address some of the most common concerns and confusions of clients as it relates to their interaction with the Barbados Bar Association generally and with their attorney at law specifically.
One such confusion arises with respect to the roles and functions of the Bar Association and the Disciplinary Committee of the Bar Association. These are two different entities with two different structures to serve two entirely different purposes.
The Bar Association was first introduced as an association on January 22, 1940 and formally incorporated in 1972, pursuant to the provisions of the Barbados Bar Association Act Cap 363 of the laws of Barbados. It is effectively the umbrella body to control and manage the business of attorneys in Barbados. It is the face of the legal fraternity responsible for interacting with the public and the judiciary to ensure that the judicial system functions properly.
In exercising this function, the Bar Association ensures the interests of both the public and the legal fraternity are protected and that the machinery of justice functions effectively.
Its officers comprise a president, vice-president, secretary, assistant secretary, treasurer as well as 12 other floor members forming the Council. The Council manages the affairs of the Bar Association and is subject to annual elections at the annual general meeting of the Bar. Membership is mandatory for all practising attorneys and its operations are funded by subscriptions from members.
On the other hand, the Disciplinary Committee is an autonomous body set up to hear and determine complaints against attorneys and to recommend disciplinary action if necessary. All expenses incurred are defrayed out of money voted for that purpose by Parliament. It receives no funding from the Bar Association.
The Disciplinary Committee is created pursuant to the Legal Professions Act Cap 370A and is “charged with the duty of upholding standards of professional conduct”. The Committee is charged with making rules in relation to the standards of professional etiquette and conduct of attorneys. It comprises seven attorneys, of whom at least three shall be of not less than ten years’ standing in the legal profession, nominated by the Bar Association. Each member shall hold tenure for a period not exceeding two years but each member is eligible for renomination.
The chairman and deputy chairman are elected from among the panel and must be of at least ten years’ standing in the profession. Members of the Committee need not be elected members of the Council of the Bar Association.
The Council of the Bar Association has no authority with respect to the hearing and adjudication of matters by the Disciplinary Committee. The Committee is ultimately accountable to the Chief Justice and not to the president of the Bar Association.
In most cases, the general public does not appreciate the distinction between the two bodies and will often call the Bar Association as the first point of contact for complaints against attorneys, which should essentially be referred to the Disciplinary Committee.
To lodge a complaint against an attorney-at-law for professional misconduct, the client or member of the public must:
1. Visit the secretary of the Disciplinary Committee at its offices on the premises of the Bar Association at Leeton, Perry Gap, Roebuck Street, Bridgetown, any Tuesday or Wednesday between 10 a.m. and 2 p.m. (telephone 430-9516);
2, Collect the following:
(a) “A form of application against an attorney-at-law” which must be filled out and signed by the applicant; and
(b) “A form of affidavit by applicant” which contains the evidence of misconduct on which the complainant intends to rely, and this must be witnessed by a Justice of the Peace.
Every complaint received by the Disciplinary Committee is investigated. First it is served on the offending attorney who is invited to provide a written response. Thereafter, the complaint and the response, if tendered, are evaluated to determine if there is need for formal disciplinary procedures by way of hearing. If the Committee finds any merit in the complaint, it is then reviewed in a formal hearing to determine if a case of professional misconduct is made out.
Where a case has been determined, the Committee must within 21 days forward to the Chief Justice a report of its findings and any recommendation for appropriate sanctions to be instituted against the attorney. The matter is then heard before the Court of Appeal which can either endorse the recommendation of the Committee or institute its own sanctions.
It must be stressed that neither the officers nor Council of the Bar Association play any role in this process, nor is there any scope for interference.
The Bar Association also seeks, through this column, to advise the public as to the best practice in certain circumstances. One of the areas which has proven problematic is the non-retention by clients of their original documentation.
For example, if the attorney retains the original title deeds or the original will of the client and then dies, a situation may arise where the files of the attorney cannot be accessed until his estate has been administered. In such a case, the original documents are unavailable to the client until the completion of that process. In other circumstances, the documents may have been misplaced or misfiled.
A suggested course of action would be that clients obtain a safety deposit box with a reputable banking institution and take charge of their own original documentation. Ultimately, the original documents are the property of the client and should also be the responsibility of the client.
With respect to wills in particular, the Registry of the Supreme Court has a repository for wills. After a will has been executed, it should be placed in a sealed envelope with the date of execution, the name and address of the testator (maker of the will) and the name(s) of the executor(s) on the face of the envelope and lodged in the Registry.
Once the will has been lodged, a receipt is given for the lodged document which should then be kept in a safe place. This would enable the testator to withdraw the will if so desired. It is also best practice to deposit the wills in the Registry because when a person dies, a search is generally made among their personal effects at home and in the Registry to see if a will is located. If none is found at home, or in the Registry, then generally the estate of the deceased is dealt with as if there was no will.
Lodging the will in the Registry provides the comfort of knowing that your last recent will and testament can be determined and your estate dealt with according to your formal written wishes.
There is also a relatively common occurrence in Barbados with testators changing their wills every time they “fall out” with a family member. Lodging of wills in the Registry allows one, by the date on the envelope and ultimately the will, to determine which is actually the last will and testament.