Bermuda Bar Amendment Act 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Acts/Bermuda%20Bar%20Amendment%20Act%201997.pdf

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Bermuda Bar Amendment Act 1997
BERMUDA BAR AMENDMENT ACT 1997

1

BERMUDA
1997 : 26

BERMUDA BAR AMENDMENT ACT 1997

[Date of Assent 14 July 1997]

[Operative Date 15 August 1997]

WHEREAS it is expedient to amend the Bermuda Bar Act 1974:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Bermuda Bar Amendment Act
1997.

Interpretation
2 In this Act—

"the Act" means the Bermuda Bar Act 1974;

"Rules" mean Rules made under section 9 of the Act in relation
to the Professional Conduct Committee and disciplinary
tribunals respectively;

"section" means section of the Act.

Amendment of section 2
3 Section 2 is amended—

BERMUDA BAR AMENDMENT ACT 1997

2

(a) by inserting next after subsection (2) the following
subsection—

"2A Subject to sections 3(1), 5, and to sections 14 to
16 of this Act which define the rights, privileges and
functions of registered associates, all registered
associates shall for so long as they remain registered be
members of the Bermuda Bar Association.";

(b) in subsection (3) by inserting next after "barrister" the
words "or registered associate".

Amendment of section 3
4 Section 3 is amended in paragraph (a) of subsection (1) by
deleting the words "such number of members" and substituting "such
number of barristers".

Amendment of section 5
5 Section 5 is amended—

(a) in paragraph (a) of subsection (3) by deleting the word
"twelve" wherever it appears and substituting the word
"twenty-five";

(b) in subsection (5) by deleting "one of its members" and
substituting "another barrister"; and

(c) by inserting in that section next after subsection (5) the
following subsection—

" (6) If, after a member of the Council has
disqualified himself for considering a matter, the number
of members remaining is insufficient to make up a
quorum of the Council for the consideration of that
matter, the President shall have power to appoint
another barrister in his place to be a temporary member
of the Council for the purpose of making up the quorum
for the consideration of that matter.".

Amendment of section 10
6 Section 10 is amended by deleting paragraph (b) of subsection
(3) thereof and substituting the following—

"(b) (i) he possesses Bermudian status within the
meaning of the Bermuda Immigration and
Protection Act 1956;

BERMUDA BAR AMENDMENT ACT 1997

3

(ii) he possesses a current and valid permit
issued under that Act entitling him to engage
in gainful occupation in Bermuda as a
barrister; or

(iii) he possesses spouse employment rights in
accordance with the provisions of section 60
of that Act;".

Amendment of Part V
7 Part V of the Act is repealed and replaced by the following—

"PART V

DISCIPLINE

Improper conduct
17 (1) For the purposes of this Act, it shall be improper
conduct if a barrister—

(a) makes a statement which to his knowledge is
false in any material particular for the purpose
of procuring his admission to practise law or the
admission of any other person so to do;

(b) employs any disqualified or unqualified person,
or permits any disqualified or unqualified person
in his employ to engage, in any business, matter
or thing in contravention of this Act;

(c) contravenes any rule made under this Act; or

(d) is otherwise guilty of conduct unbefitting a
barrister.

(2) For the purposes of this Act, it shall be improper
conduct if a registered associate—

(a) for the purpose of procuring his registration as
such is found to have produced a certificate
which is false in any material particular, or does
not relate to himself, or to have made any
statement to his employer relating to such
qualifications for such registration which is false
in any material particular; or

(b) in any business, matter or thing in which he is
entitled to engage on behalf of his employer

BERMUDA BAR AMENDMENT ACT 1997

4

under this Act, acts in any manner which would,
were he a barrister, constitute improper conduct
under subsection (1)(c).

Professional Conduct Committee
18 (1) There shall be established a standing committee of
the Bermuda Bar Association under the name of the
"Professional Conduct Committee" which shall have the powers
given to it under this Act.

(2) The Professional Conduct Committee shall consist
of—

(a) three members of the Bar Council; and

(b) four other members selected by the Council from
among the members of the Bar Association.

(3) The members of the Committee shall be appointed
annually by the Bar Council to hold office for a period not
exceeding one year commencing on the date of such
appointment.

(4) A person appointed as a member of the Committee
under subsection (3) may be reappointed thereto, so however,
that the time of such reappointment shall coincide so far as is
practicable with the election of members to the Bar Council.

(5) The Committee shall elect one of its members to be
the Chairman thereof to chair Committee meetings and perform
any other functions assigned to him in accordance with this Act
and the Rules.

(6) Where it is appropriate so to do, the Committee
may designate one of its members to be a committee
representative to perform, on behalf of the Committee, the
functions assigned to him in accordance with the Rules.

(7) If by reason of illness or absence or for any other
reason the Chairman of the Committee or a committee
representative is unable to act at any time, the Chairman of the
Committee shall nominate another of its members to act in his
place.

(8) The quorum for any meeting of the Committee shall
be three members, so however, that where the Committee is
unable to form a quorum, the Chairman thereof shall have
power to appoint a member or members of the Bar Association to

BERMUDA BAR AMENDMENT ACT 1997

5

serve on the Committee temporarily to satisfy quorum
requirements.

(9) The practice and procedure to be followed by the
Committee shall be as prescribed by Rules and, subject to this
Act and those Rules, the Committee may make its own rules of
procedure.

General powers of Professional Conduct Committee
18A (1) The powers and functions of the Committee shall be
to—

(a) conduct inquiries into and investigations of
complaints of improper conduct made against a
barrister or registered associate in accordance
with the Rules, to determine whether a prima
facie case of improper conduct has been made
out against the person complained against;

(b) take such measures prescribed by the Rules
after such inquiry or investigation, or both such
inquiry and investigation, if no prima facie case
of improper conduct has been made out against
a person complained against;

(c) take such informal or formal measures in
accordance with the Rules after investigating
such a complaint, where the Committee
determines that a prima facie case has been
made out against a person complained against;

(d) make any necessary administrative arrange-
ments, in accordance with the Rules, for the
presentation of a case before a disciplinary
tribunal, where formal measures are taken by
the Committee in respect of a complaint;

(e) make an order that a trust fund or funds shall,
until a disciplinary tribunal determines other-
wise, be operated by an accountant or a bank if
the complaint of improper conduct contains an
allegation of misuse of trust funds;

(f) authorize a committee representative to make
arrangements for counsel, and any assistant
counsel appointed by him, to be remunerated in
accordance with the Rules for work done on
behalf of the Committee;

BERMUDA BAR AMENDMENT ACT 1997

6

(g) make a ruling in respect of what constitutes a
matter of improper conduct where the
Committee considers it appropriate so to do or
when a barrister asks the Committee so to do,
and such a ruling may involve a question of
conflict of interest; and

(h) make recommendations on matters of improper
conduct to the Bar Council as it may think
appropriate.

Disciplinary tribunals
19 (1) Where the Committee determines that a prima facie
case of improper conduct has been made out and formal
measures are appropriate, it shall, after causing charges to be
formulated against that person, refer the complaint to a
disciplinary tribunal appointed by the Chief Justice under
subsection (2).

(2) When invited so to do by the Committee, the Chief
Justice shall appoint a disciplinary tribunal to sit to determine a
complaint of improper conduct against a barrister or registered
associate in accordance with the Rules.

(3) A disciplinary tribunal shall consist of a Chairman,
who shall be a Judge of the Supreme Court selected for
appointment by the Chief Justice to preside over disciplinary
hearings, and two other members recommended for appointment
by the Bar Council from among the members of the Bar
Association:

Provided that, where the Bar Council is the complainant,
the three members of a disciplinary tribunal shall be selected for
appointment by the Chief Justice.

(4) The members of a disciplinary tribunal shall, so far
as is possible, be persons of professional standing comparable or
senior to that of the person complained against.

(5) The standard of proof required in proceedings
before a disciplinary tribunal shall be the same as that required
in criminal proceedings.

(6) For the purpose of conducting a hearing, a
disciplinary tribunal shall have all the powers of a court of
summary jurisdiction in relation to the summoning of witnesses,
their examination on oath or otherwise and to compelling the

BERMUDA BAR AMENDMENT ACT 1997

7

production of any document or thing relevant to the subject
matter of the proceedings.

(7) A decision of a disciplinary tribunal may be reached
by a majority of the members of that tribunal.

(8) The practice and procedure to be followed in
relation to the proceedings of a disciplinary tribunal shall be as
prescribed by the Rules and, subject to this Act and those Rules,
a disciplinary tribunal may make its own rules of procedure.

Powers of disciplinary tribunals
19A (1) The powers and functions of disciplinary tribunal
shall be to—

(a) conduct a preliminary hearing in accordance
with the Rules, for the purpose of giving
directions in relation to the conduct of a hearing
in respect of a complaint of improper conduct;

(b) conduct a hearing in accordance with the Rules
for the purpose of determining whether or not a
complaint of improper conduct has been made
out against a person complained against and,
thereafter, make such finding, sentence or order
in accordance with the Rules as the tribunal
deems appropriate in the circumstances of the
case before it;

(c) confirm or, on the application of the person
complained against, revoke an order made by
the Committee under paragraph (e) of
subsection (1) of section 18A to appoint an
accountant or a bank to operate a trust fund or
funds temporarily where the complaint of
improper conduct contains an allegation of
misuse of trust funds;

(d) make an order for costs against either party to
disciplinary proceedings adjudicated before it in
accordance with the Rules, and this may include
an order for payment of the—

(i) professional charges of counsel, and his
assistant if any, who presents a case before
the tribunal in accordance with this Act and
the Rules;

BERMUDA BAR AMENDMENT ACT 1997

8

(ii) professional charges of a bank or accountant
appointed by an order of the Committee or a
disciplinary tribunal respectively under
section 18A(1)(e) or 19A(1)(c) of this Act
respectively;

(iii)administrative costs and expenses incurred
by the Committee in the performance of its
functions under this Act or Rules made
hereunder.

(2) An order of the Committee or a disciplinary tribunal
in pursuance of section 18A(1)(e) or 19A(1)(c) respectively may,
according to the circumstances of each particular case
considered by the Committee or a disciplinary tribunal, make
provision for any resulting costs to be met by the person
complained against or the Bar Association.

Appointment of clerk to disciplinary tribunal
20 (1) The Chief Justice shall, on the recommendation of
the Chairman of a disciplinary tribunal, appoint a person to act
as clerk to that tribunal and assist the tribunal in the
performance of its functions under this Act.

(2) The clerk shall perform such functions as are
assigned to him in accordance with this Act and the Rules, and
any other functions that a Chairman of a disciplinary tribunal
shall direct him to perform in relation to a complaint before it.

Complaints of improper conduct
21 (1) Subject to subsection (3), a complaint that a
barrister or registered associate has been guilty of improper
conduct may be made to the Bar Council in writing by the
complainant.

(2) As soon as may be practicable after receipt of a
complaint under subsection (1), the Bar Council shall refer that
complaint to the Committee.

(3) Notwithstanding subsection (1), where the Bar
Council is of the opinion that the conduct of a barrister or
registered associate might constitute improper conduct, and no
such complaint has been made by any person, it may, on its own
motion, refer evidence of the conduct of that barrister or
registered associate to the Committee.

(4) As soon as may be practicable after receipt of a
complaint from the Bar Council, the Committee shall inquire

BERMUDA BAR AMENDMENT ACT 1997

9

into, investigate and make a determination in respect of, the
complaint in accordance with the Rules.

(5) After making such determination, the Committee
shall take such action prescribed under section 18A of this Act
and the Rules as it thinks fit:

Provided that, a determination by the Committee under
paragraph (b) of subsection (1) of section 18A to dismiss a
complaint in accordance with the Rules shall be final and not
subject to appeal.

Convening Notices
22 (1) The Chief Justice shall, where the Committee
determines that formal treatment of a complaint is necessary
and disciplinary charges in respect of a person complained
against are forwarded to him, issue and cause to be served upon
that person a Notice, in this Act and the Rules made hereunder
referred to as a "Convening Notice", informing the person about
the matters and rights set out in the Rules.

(2) Upon the appointment of a disciplinary tribunal,
the Chief Justice shall send a copy of the Convening Notice to
the Committee to inform the Committee of the composition of the
tribunal that shall determine the charge or charges formulated
against a person complained against.

(3) Upon receipt of a copy of the Convening Notice, the
Committee shall forward to the disciplinary tribunal a copy of
the charge and any documentary evidence to enable the tribunal
to sit to hear and determine whether the complaint constitutes
improper conduct by a person complained against.

Appeal to the Court of Appeal
23 (1) A barrister or a registered associate aggrieved by a
finding, sentence or order of a disciplinary tribunal may appeal
to the Court of Appeal against such finding, sentence or order
within twenty-one days of being notified of it.

(2) Section 8 of the Court of Appeal Act 1964 shall
apply mutatis mutandis in relation to an appeal under subsection
(1) as it applies in relation to a judgment or order of the Supreme
Court in a civil cause or matter.

(3) Section 9 of that Act shall be deemed to extend to
the making of rules under that section to regulate the practice
and procedure on an appeal under this section.

BERMUDA BAR AMENDMENT ACT 1997

10

(4) A hearing before the Court of Appeal shall be in
camera unless the barrister or registered associate who files the
appeal requests that the hearing shall be in open court.

Restoration to Roll of name of barrister struck off
24 (1) The Bar Council may, at any time, if it thinks fit,
upon application being made by a barrister who has been
disqualified from practice or whose name has been struck off the
Roll, recommend to the Supreme Court that that barrister's
name shall be restored to the Roll or, as the case may require,
that his disqualification from practice shall be terminated, and
shall forthwith give notice of any such recommendation to the
Registrar.

(2) Upon receipt of notice of a recommendation made
by the Bar Council under subsection (1) in relation to a barrister,
the Registrar shall forthwith cause that application and
recommendation to be placed before the Supreme Court and
upon receipt of an application and subject to such conditions as
the Court considers appropriate, the Court may—

(a) exercise any powers vested in it by section 51 of
the Supreme Court Act 1905 to order the
restoration to the Roll of that barrister's name;
or as the case may require,

(b) order the termination, with effect from a date
specified in the order, of the barrister's
suspension from practice.

(3) Any decision of the Bar Council under subsection
(1) in relation to the making of a recommendation under that
subsection or a refusal so to do, and any decision or order of the
Supreme Court under subsection (2) in relation to any such
recommendation, shall be final.

(4) Where the Supreme Court orders under subsection
(2) the restoration of a barrister's name to the Roll or the
termination of his suspension from practice, the Registrar shall
cause a note of the effect of the order to be entered in the Roll
and a notice thereof to be published in the Gazette.

Restoration to Register of name removed
24A (1) The Bar Council may at any time, if it thinks fit,
upon application being made by a registered associate who has
been suspended from practice or whose name has been removed
from the Register of Associates, recommend to the Registrar that,

BERMUDA BAR AMENDMENT ACT 1997

11

subject to such conditions as the Bar Council considers
appropriate, that registered associate's name shall be restored to
the Register of Associates or, as the case may require, that his
suspension from practice shall be terminated.

(2) Upon receipt of notice of a recommendation made
by the Bar Council under subsection (1) in relation to a
registered associate, the Registrar may—

(a) exercise the power vested in him by section 14 of
this Act to enter the registered associate's name
in the Register of Associates; or as the case may
require,

(b) terminate that registered associate's suspen-sion
from practice.

(3) A decision of the Registrar under subsection (2)
shall be final.

(4) The Registrar shall cause a notice of the entry in
the Register of Associates to be published in the Gazette.

Registrar may publish charge, finding and sentence
24B (1) Subject to the provisions of this section, a charge,
finding or sentence of a disciplinary tribunal may be published
in the Gazette.

(2) Where, at the end of disciplinary proceedings, a
disciplinary tribunal finds that a complaint does not constitute
improper conduct by a person complained against, the Registrar
shall publish in the Gazette a notice of the complaint, charge
and the finding, if the person complained against requests such
publication.

(3) Where the sentence is one of disbarment,
suspension or a fine and a period of six weeks from the date of
the decision of the disciplinary tribunal has expired, the
Registrar shall—

(a) cause a note of any charge proved against the
respondent and the sentence imposed upon him
to be entered in the Roll against the name of the
barrister, or as the case may be in the Register
of Associates against the name of the registered
associate; and

(b) file the order made in respect of the sentence.

BERMUDA BAR AMENDMENT ACT 1997

12

(4) After filing such an order under paragraph (3), the
Registrar shall cause a notice stating any charge proved and the
sentence imposed against the respondent, to be published in the
Gazette.

(5) Where the sentence is one other than disbarment,
suspension or a fine and the respondent has not appealed
against his sentence to the Court of Appeal, the Registrar shall—

(a) cause a note of the effect of the order of the
disciplinary tribunal to be entered in the Roll
against the name of the barrister, or in the
Register of Associates against the name of the
registered associate to whom the order relates;
and

(b) if the tribunal so recommends and the
respondent so requests, cause a notice stating
the effect of the order to be published in the
Gazette.

(6) Where a respondent has appealed to the Court of
Appeal against the finding or sentence or both such finding and
sentence in respect of the complaint made against him, such
finding or sentence or both shall not be published until the
appeal is withdrawn, struck out or determined by the Court of
Appeal.

Confidentiality
25 Subject to section 24B of this Act, every disciplinary
proceeding under this Part of the Act shall be treated as
confidential by every person having access thereto.".

Consequential amendments
8 Consequentially upon the repeal and replacement of Part V of
the Act, the statutory provisions specified in column 1 of the Schedule to
this Act are amended in the manner specified in column 2 of that
Schedule.

Commencement
9 This Act shall come into operation on such day as the Minister
responsible for Legislative Affairs may appoint by notice published in the
Gazette.

BERMUDA BAR AMENDMENT ACT 1997

13

SCHEDULE (section 8)

Column 1 Column 2

Section 1 of the Bermuda
Bar Act 1974:

(a) insert immediately preceding the
definition of "admitted" the
following definition—

" "accountant" means a person
who is a member of an
accounting institution re-
cognized by the Bar
Council;";

(b) insert next after the definition of
"Association" the following defi-
nition—

" "bank" has the meaning assigned
to it in the Bank Act 1969;";

(c) insert next after the definition of
"barrister" the following defini-
tion—

" "the Committee" means the
Professional Conduct Com-
mittee established by sec-
tion 18;";

(d) delete the definition of "discipli-
nary committee" and substitute
the following definition—

" "disciplinary tribunal" means a
tribunal appointed under
section 19;".

Section 9 of the Bermuda
Bar Act 1974:

(a) in paragraph (a) of subsection (1)
insert next after the word
"barristers" the words "or
registered associates";

BERMUDA BAR AMENDMENT ACT 1997

14

(b) in paragraph (c) of subsection (1)—

(i) delete the words ", or investi-
gations" and substitute the
words "and investigations, or
hearings respectively";

(ii) delete the words "by a
disciplinary committee under
section 21" and substitute the
words "by the Professional
Conduct Committee or a
disciplinary tribunal under
section 18A or 19A".

Section 16 of the Bermuda Bar
Act 1974:

in paragraph (c), delete the word
"committee" and substitute the
word "tribunal"; and delete the
word "21" and substitute the word
"19A".

Bar Disciplinary Committee
Proceedings Rules 1976:

revoke.

Rule 6 of the Bermuda Bar
Association (Organization)
Rules 1975:

insert next after the word
"barrister" the words "or registered
associate".