bdabar@logic.bm   |   (441) 295 4540   |   Second Floor, Swan Building 26 Victoria Street Hamilton HM 12, Bermuda

 

Disciplinary Proceedings

As regulator of Bermuda’s legal profession, the Association is responsible for both the regulation and discipline of members of the legal profession in Bermuda. Barristers & Attorneys admitted to the Bar in Bermuda are held to the same standards as other reputable Commonwealth jurisdictions.

 

Through an elected Bar Council the Bar Association is responsible for matters pertaining to admission to practice law in the jurisdiction and rules of conduct for its members.

 

The Bermuda Bar Association is privileged to be allowed to self-govern. The power to discipline its members is vested in the Bermuda Bar Council by the Bermuda Bar Act 1974.  There is a Code of Conduct that members are expected to abide by.  The Professional Conduct Committee investigates complaints where Barristers & Attorneys admitted to the Bermuda Bar may have failed to meet standards of professional competence, conduct and regrettably in some cases dishonesty. The governing body also prosecutes illegal practitioners who practice law or provide legal services to the public who are not licenced and have not been issued a Practising Certificate (renewal required annually).

 

In addition, in recognition of the fact that the legal profession is self-governing, the Bar Association receives, investigates and adjudicates complaints about its members.

 

In the course of the year, Disciplinary Tribunals have sat with the Chief Justice, or his Puisne Judges presiding. 

 

Statistics of Cleared, Closed and Tribunal Complaints from April 2017 through 31 March 2018   

From 1 April 2017 through 31 March 2018, the PCC received twenty-nine (29) new complaints of improper conduct. There are eleven (11) complaints on hold pending the outcome of Court proceedings. Twenty-eight (28) Complaints were dismissed, or closed with four (4) attorneys admonished at the time of this report. 

 

Six (6) tribunals were formed in the course of the year. Four (4) concluded with two (2) awaiting the decision of the tribunal panel of which we hope we will be reporting on the findings soon. Sixteen (16) cases in which Charges/Witness Statements are pending. A few of these cases are as a direct result of the responding attorney choosing not to provide comments to the PCC at the early stage of the process leaving the PCC with no alternative in the circumstances other than to refer the matter to a tribunal for determination. 

 

Three (3) tribunal cases resulted in clients receiving unsatisfactory work in which each received a return of all or a portion of legal fees paid to the attorneys. Admonishments were handed down by the panel, however as there was no fine or suspension put in place which means that no Official Notices have been published in these cases.

 

The fourth case resulted in the attorney being found guilty of the charge of engaging in conduct which was dishonest by falsely stating to the Registrar and the Court of Appeal that his doctor had advised the Respondent to confine himself to bed rest for several days, contrary to rules 6(ii) and 43(iv) of the Barristers’ Code of Professional Conduct 1981. The attorney has been suspended from sole practice for six months from and shall only be entitled to practise as an employee of a licensed firm or barrister and attorney, subject to certain conditions. The attorney is to be supervised by Senior lawyer for period of 12 months. Costs were awarded to Bar Council in the amount of $2,000.00.

 

 

Year over year comparison table (3 year):

 

 Description:

1 April 2017 through  31 March 2018

1 April 2016 through 31 March 2017

1 April 2015 through 
31 March 2016

New complaints (1 April 2017 through 31 March 2018)

29

37

43

Active on-going investigations

10

19

12

Complaints closed, dismissed, or admonished

28

(4 admonished) 

34

(7 admonished) 

32

Complaints filed by Bar Council

(included in Active on-going investigation)

7

2

2

Attorney vs. Attorney complaints (closed/admonished)

4

4

10

Complaints in abeyance pending outcome of on-going court proceedings

11

10

7

Inspector appointed Rule 7 of the (Barristers Accounts and Records) Rules 1976  2 0 0

Fees Arbitrations

3

(1 attorney agreed 2 awaiting response) 

3 attorneys declined

1 attorney declined

Tribunals pending/active/completed

22

15

20

 

The Tribunal Process Explained

Once the Professional Conduct Committee (PCC) has made its initial investigation, it determines how best to deal with the complaint.  If minor, the PCC can administer an admonition.  Otherwise, the complaint is referred to a tribunal.  The charges are filed with the Chief Justice. Where a member of the public is the complainant, Bar Council puts forward two active members of the Bar to sit on the tribunal.  When Bar Council is the complainant, the Chief Justice appoints the two members of the Bar to the tribunal.  The tribunal is always chaired by a Supreme Court Judge.  A preliminary hearing is held usually within four to six weeks of receiving the convening notice with the substantial hearing scheduled approximately 6-8 weeks later.  The preliminary hearings are short with the substantial hearings taking anything from a half day to 2 or 3 full days.  The hearings are in private unless the attorney elects to have it dealt with publically.

 

When Bar Council asks members of the Association to sit on a tribunal there is usually a positive response on the part of the member to do so. We have seen more members agreeing to the appointments this year rather than declining. Indeed, it is a privilege to be invited for a panel appointment by the Chief Justice or Bar Council as members who have past, or current infractions recorded against them will not be invited for appointment. ‘Conflict’ has to be considered but simply having a friendly relationship with a colleague who is now a ‘respondent’ is not in itself conflict, otherwise we would be in great difficulty ever forming a tribunal. Additionally, panel members are selected on the basis of similar, or more years of call than the respondent as the respondent is entitled to a jury of his/her peers.

 

Suspension & Disbarment

On average 10 to 15 Tribunals are convened each year in this jurisdiction. Please note that only Published Notices appear in this section. In order for a matter to be published, there must be a fine, suspension from practice or disbarment/struck off the Roll imposed.  Of the tribunal hearings held since 1993, the following public notices appeared in the Official Gazette:

 

PUBLISHED NOTICES:

Active Suspensions published in the Official Gazette:

  • Bar Council against Kamal Worrell (28 July 2017). The Tribunal found that Mr. Worrell was guilty of the charge of engaging in conduct which was dishonest by falsely stating to the Registrar and the Court of Appeal that his doctor had advised the Respondent to confine himself to bed rest for several days, contrary to rules 6(ii) and 43(iv) of the Barristers’ Code of Professional Conduct 1981. Mr. Worrell is suspended from sole practice for six months from the date of this Order (i.e. from 1st November 2017 until 30th April 2018) and shall only be entitled to practise as an employee of a licensed firm or barrister and attorney, subject to certain conditions with liberty to apply in relation to costs and the implementation of the said conditions. Mr. Worrell is to be Supervised by Senior lawyer for period of 12 months from date of Order provided Mr. Worrell receives confidential waiver from clients for whom he acts and obtains the consent of his employer so as to enable Mr. Worrell to fulfil his obligations under the Supervision Agreement. Costs awarded to Bar Council in the amount of $2,000.00. 
  • Bar Council against William Paul King (14-Apr-16). Mr. King self reported trust account deficit to Bar Council. Tribunal panel found Mr. King guilty of breaching Rules 6(ii) and 33 to 35 of the Barristers’ Code of Professional Conduct 1981. In addition, was found guilty of breach of Rules 3, 4, 5, 6 and 8 of the Barristers’ (Accounts and Records) Rules 1976. Suspended from practice for 3 years. Costs awarded $1,000.

 

Unable to practice until compliance with order of the Tribunal ruling:

  • Wanda Bowen Ebbin against Braxton Philip (11-Jun-14): Breach of Rules 6(ii), 6 (iv) of the Barristers Code of Professional Conduct 1981. Found guilty of Charges and suspended from practicing conveyancing work for 2 years. Ordered to repay legal fees to complainant in the amount of $9, 266.25 Costs awarded to the Prosecutor in the amount of $2, 500. (fees remain unpaid to complainant and cannot practice)
  • Francine Hodgson against Braxton Philip (5-Dec-13): Breach of Rules 6(ii), 6 (iv) of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Ordered to repay legal fees to complainant. Costs awarded to the Prosecutor in the amount of $500. (fees remain unpaid to complainant and cannot practice)

 

Completed Suspension/Admonishment/Fined (Published):

  • Tauwana Trott against Karen Williams-Smith (29-Nov-13): Breach of Rule 22 and 24 of the Barristers Code of Professional Conduct 1981. Please guilty to both Charges. Admonished by Tribunal panel and fined $500 payable to the Crown. Cost awarded to the Prosecutor in the amount of $500 
  • Bar Council & Paul Lacy against Llewellyn Peniston (9-Dec-11): Breach of Rules 6(ii), 6 (iii) and 108 of the Barristers Code of Professional Conduct 1981. Found guilty of all three Charges. Practising while suspended, failing to file Barristers Accountants report in timely manner and issuing threats Admonished and suspended from practice for 2 years. No costs sought by Prosecutor.  
  • Bar Council against Takiyah Burgess (18-Sep-09): Breach of Rule 6 (ii) and 62 of the Barristers Code of Professional Conduct 1981. Plead guilty to both Charges. Admonished by the tribunal and fine payable to the Crown in eth amount of $1,000. No cost application sought by Prosecutor.
  • Albert Smith against Llewellyn Peniston (13-Jun-08): Breach of Rule 7 of the Barristers (Accounts and Records) Rules 1976. Suspended from practice for 3 months. Costs awarded to the Prosecutor in the amount of $2, 500 and pay the Inspector which was appointed to review the financial operations of the firm. Mr. Peniston Appealed the decision of the Tribunal and the COA amended the suspension to 30 days.
  • Bar Council against Lawrence Scott (18-Jan-07):  Breach of Rule 2 of the Barristers (Accounts and Records) Rules 1976. Found guilty of charge. Reprimanded by the Tribunal panel. Fined $2, 500 payable to the Crown. No costs order sought.
  • Rhoda Evans against Lawrence Scott (4-Jun-07): Breach of Rules 6(ii), 6 (iv) and 13 of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Suspended from all practice for a period of 2 years with additional training required in handling client funds. No costs sought. 
  • Mark Koren against Llewellyn Peniston (28-Nov-06): Breach of Rules 4, 6(ii), 6 (iii), 103 and 109 of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Suspended from practice for 12 months. Costs awarded to the Prosecutor in the amount of $7,500
  • Bar Council against Carlsen Philip (9-Jun-05): Breach of Rule 7(3) of the Barristers (Accounts and Records) Rules 1976. Found guilty of Charge. Suspended from practice for 2 years. No costs sought by Prosecutor.
  • Bar Council against Lawrence Scott (31-Jan-02): Breach of Rules 34 of the Barristers Code of Professional Conduct 1981 and Breach of Rules 4, 5 (a) through (e) of the Barristers (Accounts and Records) Rules 1976.  Found guilty of Charges. Suspended from practice for 3 months and ordered to establish a system of accounts which complies with Barristers (Accounts & Records) Rules 1976. No costs sought by Prosecutor.  
  • Bar Council & Appleby Spurling & Kemp against Murray Kierans (7-May-93) Breach of Rules 6(ii) of the Barristers Code of Professional Conduct 1981. Found guilty of Charge. Fine in the amount of $1,500 payable to the Crown. No cost sought by prosecutor.

 

Disbarment/struck off the Roll of Barristers & Attorneys kept by the Registrar of the Supreme Court of Bermuda

  • Irma Burrows against Llewellyn Peniston (8-Dec-11): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. No costs sought by the Prosecutor and no fines imposed.  
  • Bar Council against Robert Martyn (27-Nov-07): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. Costs awarded to the Prosecutor in the amount of $2, 500
  • Bar Council against Charles Vaucrosson (6-May-98): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. No costs sought by the Prosecutor and no fines imposed.  
  • Bar Council against Lawrence Madeiros (16-Feb-94): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 47 of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. No costs sought by the Prosecutor and no fines imposed.  

 

The Registrar of the Supreme Court publishes orders that affect the status of a Barrister & Attorney if they are suspended or disbarred. The Chairman of the disciplinary Tribunal will close out the compliant by filing a Chairman’s report which shall remain private.