Bar Disciplinary Tribunal Rules 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Statutory%20Instruments/Bar%20Disciplinary%20Tribunal%20Rules%201997.pdf

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Bar Disciplinary Tribunal Rules 1997
Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 1





BERMUDA STATUTORY INSTRUMENT

BR 55/1997

BAR DISCIPLINARY TRIBUNAL RULES 1997

[made under section 9(1)(c) of the Bermuda Bar Act 1974 [title 30 item 3]
and brought into operation on 12 September 1997]

ARRANGEMENT OF RULES
1 Citation
2 Application and interpretation
3 Sittings of disciplinary

tribunals
4 Adjournment of proceedings
5 Amendment of charges after

service
6 Extension of time limits
7 Agreed directions
8 Preliminary hearing
9 Record of proceedings at

preliminary hearing
10 Provision of documents to

disciplinary tribunal prior to
hearing

11 The hearing
12 Record of proceedings at

hearing

13 Hearing in private or in public
14 Admission of evidence at

hearing
15 Evidence of decisions of a

court or other tribunal at
hearing

16 Non-appearance of respondent
at hearing

17 The finding
18 The sentence
19 Ambit of sentence of

suspension
20 Orders of disciplinary

tribunals
21 Deferment of sentence pending

appeal
22 Report of finding and sentence
23 Costs

Citation
1 These Rules may be cited as the Bar Disciplinary Tribunal Rules
1997.


BAR DISCIPLINARY TRIBUNAL RULES 1997


2 Update #7 as at 31 Aug. 1998 1989 Revision



Application and interpretation
2 (1) These Rules shall have effect in relation to the hearing and
determination of complaints by a disciplinary tribunal appointed by the
Chief Justice under section 19 of the Act.

(2) In these Rules, unless the context otherwise requires —

"the Act" means the Bermuda Bar Act 1974 [title 30 item
3];

"clerk" means a clerk to a disciplinary tribunal appointed
under section 20 of the Act;

"Committee" means the Professional Conduct Committee
established under section 18 of the Act;

"committee representative" means a member of the
Committee so designated under section 18 of the Act;

"disciplinary tribunal" means a tribunal appointed by the
Chief Justice under section 19 of the Act;

"respondent" means a barrister or registered associate
against whom a complaint of improper conduct has
been made by any person to the Bar Council, or by
the Bar Council on its own motion, under section 21
of the Act.

Sittings of disciplinary tribunals
3 (1) Subject to paragraph (3) of this rule, a disciplinary tribunal
shall sit from day to day to hear evidence in respect of a charge made
against a respondent until it has arrived at a finding in respect of the
charge and if any charge has been found proved, until a sentence is
pronounced and an order has been made by it pursuant to that
sentence.

(2) A complainant and a respondent shall be parties to any
hearing or preliminary hearing in respect of a complaint of improper
conduct.

(3) A disciplinary tribunal shall sit in such place and at such
time as the Chairman of the tribunal may direct.

Adjournment of proceedings
4 Notwithstanding rule 3(1), the Chairman of a disciplinary
tribunal may, on his own motion or upon the application of any party to
disciplinary proceedings, adjourn a hearing or preliminary hearing for
such period and upon such terms as he thinks fit in accordance with the
rules of natural justice.

Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 3



Amendment of charges after service
5 (1) A disciplinary tribunal may, at any time before or during a
hearing, permit either party to the disciplinary proceedings to amend a
charge, and this shall include, but shall not be limited to, circumstances
where the charge to be amended falls outside the scope of the complaint
considered by the Committee.

(2) After considering whether to permit an amendment to a
charge under paragraph (1) of this rule, a disciplinary tribunal—

(a) may permit the amendment if it is satisfied that a
respondent will not by reason of such an amendment
suffer any substantial prejudice in the conduct of his
defence;

(b) shall, if so requested by the respondent, adjourn the
disciplinary proceedings for such time as is reasonably
necessary to enable him to defend the amended charge.

(3) Where a disciplinary tribunal determines that a charge
should be amended and permits such amendment, the tribunal shall
make such order as to the cost occasioned by the amendment, or of any
consequential adjournment of the proceedings arising therefrom, as it
considers appropriate.

Extension of time limits
6 Upon the application of either party to disciplinary proceedings
the Chairman of a disciplinary tribunal may, at any time before the
substantive hearing, extend or abridge any time limit imposed under
these Rules on such terms as he thinks just.

Agreed directions
7 (1) Notwithstanding rule 8, the parties to disciplinary
proceedings may, prior to the date fixed for a preliminary hearing, agree
upon the directions to be made or steps to be taken for the just and
expeditious conduct of the proceedings, or that no such directions or
steps are required, and shall notify the clerk in writing of such an
agreement.

(2) Where a disciplinary tribunal receives written notification of
such an agreement under paragraph (1) of this rule, the Chairman
thereof may, if he thinks fit—

(a) endorse the directions in the terms agreed and direct
that no preliminary hearing is required, not-
withstanding rule 8(1);

(b) endorse the directions in the terms agreed and direct
that a preliminary hearing shall be held nevertheless on
the date so fixed for that purpose; or


BAR DISCIPLINARY TRIBUNAL RULES 1997


4 Update #7 as at 31 Aug. 1998 1989 Revision



(c) refuse to give directions in the terms agreed and direct
that a preliminary hearing shall be held on the date so
fixed for that purpose.

Preliminary hearing
8 (1) Subject to rule 7, a disciplinary tribunal shall hold a
preliminary hearing for the purpose of giving directions to the parties
and taking such other steps as it considers appropriate for the
clarification of the issues before the tribunal and generally for the just
and expeditious conduct of a disciplinary hearing.

(2) The preliminary hearing shall be held on a date fixed by the
Chief Justice therefor or, in any event, not more than 28 days after the
date on which the Chief Justice issues a Convening Notice under section
22 of the Act and causes it to be served upon a respondent.

(3) At a preliminary hearing, a disciplinary tribunal may give
directions to the parties to the disciplinary proceedings in relation to—

(a) the matter whether the hearing should be held in private
or in public;

(b) the matter whether there should be separate hearings
where the complaint involves more than one charge;

(c) the attendance of witnesses;

(d) the requirement that the parties provide each other with
the names of all witnesses to be called at the hearing
and statements of their evidence within a specified time
limit;

(e) the inspection of documents contained in the list of
documents served on a respondent;

(f) the admission of documents;

(g) the admission of facts;

(h) the estimated duration of the substantive hearing; and

(i) such other matters as it deems expedient for the efficient
conduct of the hearing.

(4) In pursuance of sub-paragraph (g) of paragraph 3 of this
rule, a disciplinary tribunal may, if it thinks fit, direct that a respondent
or his representative, either forthwith or in writing within such time as
may be specified, state—

(a) whether any fact relied on in support of a charge is
disputed; and if so,

(b) the ground on which the fact is disputed.

Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 5



(5) Upon the application of either party to the disciplinary
proceedings, or on his own motion, the Chairman of a disciplinary
tribunal may direct that further preliminary hearings shall be held for
the purpose of giving any additional directions or taking any other steps
which he considers necessary for the proper conduct of the disciplinary
proceedings.

Record of proceedings at preliminary hearing
9 (1) The clerk shall take a note of the proceedings at a
preliminary hearing setting out the directions given or admissions made
thereat and the note shall include, without prejudice to the generality of
the directions given, any directions which relate to any of the matters in
paragraph (3) of rule 8.

(2) The clerk shall cause a record of the note to be drawn up
and served on the parties not later than 10 days before the
commencement of the hearing.

Provision of documents to disciplinary tribunal prior to hearing
10 Within 14 days prior to the commencement of the hearing of a
complaint, a clerk to a disciplinary tribunal shall cause to be provided to
each member of the tribunal copies of the following—

(a) any documents proposed to be relied on by counsel for
the parties to the disciplinary proceedings, unless a
direction has been made at the preliminary hearing or
otherwise that copies of such documents do not have to
be disclosed;

(b) any written answer to the charges submitted by or on
behalf of a respondent;

(c) such other documents, which may include copies of
witness statements, which have at the preliminary
hearing or otherwise been directed to be, or the parties
to the disciplinary proceedings have agreed should be,
laid before the tribunal prior to the start of the hearing;

(d) the record of any directions given at a preliminary
hearing, or any directions agreed upon by the parties to
the disciplinary proceedings and endorsed by the
tribunal where no preliminary hearing has been held.

The hearing
11 (1) The proceedings of a disciplinary tribunal shall be governed
by the rules of natural justice.

(2) In the conduct of the hearing of any complaint, a
disciplinary tribunal shall direct its clerk to ensure that—


BAR DISCIPLINARY TRIBUNAL RULES 1997


6 Update #7 as at 31 Aug. 1998 1989 Revision



(a) adequate notice of the proceedings is given to a
complainant and respondent and that the parties have
complied with any direction or order made by a tribunal
under section 19A of the Act; and

(b) any party to the proceedings may, if he so requires, be
heard by the tribunal either in person or by counsel.

Record of proceedings at hearing
12 (1) The clerk shall ensure that a note is taken of the hearing
and this shall include any evidence given to a disciplinary tribunal.

(2) For the purposes of a disciplinary hearing, the clerk shall
arrange for a note of the proceedings to be taken by a shorthand writer
or recorded by the use of a recording machine.

Hearing in private or in public
13 A hearing before a disciplinary tribunal shall be in private
unless—

(a) a respondent has made an application that the hearing
shall be in public; and

(b) the public interest does not require the hearing to be in
private.

Admission of evidence at hearing
14 (1) Subject to the rules of natural justice, a disciplinary
tribunal may—

(a) admit any evidence, whether oral or written, direct or
hearsay, and whether or not such evidence would be
admissible in a court of law:

Provided that, a disciplinary tribunal may exclude any
hearsay evidence if it is not satisfied that reasonable
steps have been taken to obtain direct evidence of the
facts sought to be proved by the hearsay evidence;

(b) give such directions with regard to the conduct of and
procedure at the hearing and the admission of evidence
thereat as it considers appropriate for ensuring that a
respondent has a proper opportunity to answer a charge.

(2) Where a disciplinary tribunal is of the opinion that a
respondent shall not be materially prejudiced thereby, it may hear
evidence from a witness even if—

Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 7



(a) a copy of a witness statement has not been served on
the respondent either at all or within the time limit
specified by rule 10;

(b) a document upon which counsel intends to rely has not
been included in the list of documents served upon a
respondent with a Convening Notice.

Evidence of decisions of a court or other tribunal at hearing
15 (1) Subject to the provisions of this rule, where there is
evidence before a disciplinary tribunal that a respondent has been the
subject of a decision of a court or other tribunal and it is shown that the
decision is relevant to the matters before the tribunal, that decision may
be admitted in evidence at the hearing of the charge as prima facie proof
that such a decision was made.

(2) A conviction for a criminal offence may be proved by
producing a certified copy of the certificate of conviction relating to the
offence and proof of such a conviction in this manner shall constitute
prima facie evidence that the respondent was guilty of such an offence.

(3) A finding and sentence of a tribunal exercising a
professional disciplinary jurisdiction in Bermuda or overseas may be
proved by producing a certified copy of the finding and sentence and if so
proved, shall constitute evidence of such finding or sentence.

(4) The judgment of any civil court may be proved by producing
a certified copy of the judgment as evidence thereof.

Non-appearance of respondent at hearing
16 (1) Where a respondent does not appear in person or is not
represented at the time and place appointed for his hearing a
disciplinary tribunal may, where it is satisfied that—

(a) the proper procedure under these Rules has been
complied with; and

(b) the documents required by rule 10 have been served
upon him,

nevertheless proceed to hear and determine a charge in his absence.

(2) Where a disciplinary tribunal is satisfied that a charge has
been proved against a respondent in his absence and that he was not
present throughout the proceedings, it shall attach to its record of the
sentence imposed a statement that the finding was made and sentence
was passed in the absence of the respondent.

(3) The clerk shall give notice to the respondent in writing of a
sentence imposed upon him in accordance with paragraph (2) of this
rule.


BAR DISCIPLINARY TRIBUNAL RULES 1997


8 Update #7 as at 31 Aug. 1998 1989 Revision



The finding
17 (1) At the conclusion of the hearing of any complaint, a
disciplinary tribunal shall pronounce its finding or sentence, or finding
and sentence in respect of any charge.

(2) Such sentence shall be set down in writing and signed by
the Chairman and every other member of the tribunal.

(3) In any case where a charge of improper conduct has not
been found proved against a respondent at the conclusion of the hearing,
no action shall be taken against him and the charge shall be dismissed.

The sentence
18 (1) Where a disciplinary tribunal has found a charge of
improper conduct proved against a respondent it shall proceed to
sentence him therefor.

(2) A disciplinary tribunal may admit evidence of any previous
disciplinary proceedings or court proceedings in which any charge of
improper conduct has been proved against a respondent and, after
hearing any representations by or on behalf of a respondent, the tribunal
shall make a decision as to the sentence to be imposed upon the
respondent, and record the sentence in writing.

(3) A disciplinary tribunal may impose any of the following
sentences upon a respondent—

(a) admonition or reprimand;

(b) disbarment;

(c) striking off the Roll or removal from the Register of
Associates;

(d) suspension; or

(e) a fine.

(4) The Chairman of a disciplinary tribunal shall pronounce its
decision as to sentence to the Committee.

Ambit of sentence of suspension
19 (1) A sentence of suspension may be imposed on a respondent
upon such conditions as the tribunal thinks fit, and such conditions may
include a requirement that the respondent so sentenced shall undergo
such further pupillage or training to attain such standard of competence
as the tribunal may determine.

(2) A sentence of suspension may be made to apply to every
aspect of the practice of a respondent so sentenced, or to such part only
as the disciplinary tribunal may determine.

Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 9



Orders of disciplinary tribunals
20 (1) A disciplinary tribunal shall make an order setting out the
sentence imposed on a respondent.

(2) An order made by a disciplinary tribunal in accordance with
paragraph (1) of this rule may make provision for any one or more of the
following—

(a) the disbarment and striking off the Roll of the name of
the barrister, or as the case may be, the removal from
the Register of Associates of the name of the registered
associate, to whom the charge relates;

(b) the suspension of that barrister or registered associate
for a period not exceeding 3 years from practice;

(c) the payment by that barrister or registered associate of a
fine not exceeding $5,000 which shall be forfeited to the
Crown;

(d) the repayment by that barrister or registered associate of
fees collected from a complainant or the disallowance of
such fees where he has not yet collected them;

(e) the transfer of the administration of trust funds under
that barrister's control to an accountant or a bank until
other arrangements can be made for their
administration where a charge proved against him
involves the misuse of trust funds or, as the case may
be, the confirmation or revocation of any order made by
the Committee under section 18A(1)(e) of the Act;

(f) the restoration to the Roll of the name of a barrister
whose name has been struck off the Roll, or the
restoration to the Register of Associates of the name of a
registered associate whose name has been removed from
the Registered Associates, and to whom a charge relates;

(g) the admonition or reprimand of that barrister or
registered associate, and the issue of the admonishment
or reprimand forthwith;

(h) the provision of advice forthwith to that barrister or
registered associate in terms it sees fit.

(3) Any order made by a disciplinary tribunal shall take effect
on the day when it is pronounced by the tribunal and from that day may
be acted upon and shall be enforceable in the same manner as a
judgment or order of a court to the like effect.


BAR DISCIPLINARY TRIBUNAL RULES 1997


10 Update #7 as at 31 Aug. 1998 1989 Revision



Deferment of sentence pending appeal
21 (1) In any case where a respondent has filed a Notice of Appeal
against the finding or sentence of a disciplinary tribunal, or both such
finding and sentence, the tribunal—

(a) may rule that the operation of the sentence shall be
deferred pending the outcome of his appeal; and if so,

(b) shall inform the Committee of such ruling.

(2) The Chairman of a tribunal may, on application by the
Committee, impose such terms on the deferment or require such
undertaking from a respondent in connection therewith as the tribunal
may think fit, and this may include an undertaking that he shall not
practise law pending the hearing of his appeal and its determination.

Report of finding and sentence
22 (1) As soon as practicable after the pronouncement of the
finding or sentence and order, or where applicable both such finding,
and sentence and order, the Chairman of a disciplinary tribunal shall
prepare a report in writing of any finding, sentence and order, as the
case may be.

(2) At the discretion of the Chairman, the report may also refer
to matters which, in light of the evidence given to a disciplinary tribunal,
appear to it to require further investigation or comment.

(3) The Chairman of a disciplinary tribunal shall send copies of
the report to the following persons—

(a) the Chief Justice;

(b) the Registrar;

(c) the President of the Bar Council; and

(d) a respondent.

Costs
23 (1) Subject to the provisions of this rule, a disciplinary tribunal
may make an order under section 19A(1)(d) of the Act, for the payment
by any party of costs of such amount and in such terms as it thinks fit.

(2) The cost of remuneration under section 19A(1)(d) of the Act
in respect of counsel who presents a case before a disciplinary tribunal
shall be borne by the Bar Association, so however that—

(a) the disciplinary tribunal must inform the Committee of
the costs and ask the Committee to authorize such
payment; and

Title 30
Laws of Bermuda Item 3(h)


1989 Revision Update #7 as at 31 Aug. 1998 11



(b) the Committee must obtain the approval of the Bar
Council in writing before authorizing such payment.

(3) Where a disciplinary tribunal makes an order for costs, the
clerk appointed under section 20 of the Act shall file that order with the
Registrar as soon as practicable after it is made.

(4) Where it is proved in disciplinary proceedings before a
disciplinary tribunal that a respondent has misused a trust fund or trust
funds, the costs incurred by an accountant or a bank which has
operated the trust fund or funds in pursuance of an order made under
section 18A or 19A of the Act, shall be met on an indemnity basis, by a
respondent:

Provided that, where such charge is not made out, those
costs shall be met by the Bermuda Bar Association.

(5) Such charges falling to be paid to an accountant or a bank
constitute a civil debt due to the bank or the accountant, as the case
may be, and may be recovered by it or him on an indemnity basis.

(6) Upon making an order for costs, a disciplinary tribunal
shall either itself determine the amount of such costs or appoint a
suitably qualified person to do so on its behalf.

(7) Any costs ordered to be paid by a respondent shall be paid
by him to the Bermuda Bar Association who shall make any necessary
disbursements.

(8) Subject to the provisions of this rule, the payment of all
costs and expenses incurred by a disciplinary tribunal or by the
Committee in connection with or in preparation for the hearing before a
tribunal shall be borne by the Bermuda Bar Association.