Bar Professional Conduct Committee Rules 1997

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

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Bar Professional Conduct Committee Rules 1997
BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

1

BR 56/1997

BERMUDA BAR ACT 1974

1974 : 105

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

ARRANGEMENT OF RULES
1 Citation
2 Application and

interpretation
3 Preliminary inquiry into

complaints
4 Dismissal of non-

meritorious complaints
after preliminary inquiry

5 Investigation of
meritorious complaints

6 Dismissal of meritorious
complaint after
investigation

7 Informal treatment of
complaint disclosing
prima facie case

8 Formal treatment of
complaint disclosing
prima facie case

9 Complainant to be kept
informed of progress of
investigation of complaint

10 Chief Justice to be
informed of result of
investigation

11 Formulation of
disciplinary charges

12 Transmission of
disciplinary charges to
Chief Justice

13 Chief Justice to transmit
disciplinary charges and
Convening Notice to
respondent

14 Transmission of
documents to respondent

15 Objection to member of
disciplinary tribunal by
respondent

16 Transmission of
Convening Notice to
Committee and
disciplinary tribunal

17 Imposition of conditions
on person complained
against pending appeal

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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The Bar Council, in exercise of the power conferred upon it by
section 9(1)(c) of the Bermuda Bar Act 1974, makes the following
Rules:

Citation
1 These Rules may be cited as the Professional Conduct
Committee Rules 1997.

Application and interpretation
2 (1) These Rules shall have effect in relation to the Professional
Conduct Committee appointed by the Bar Council under section 18 of
the Act.

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

"the Act" means the Bermuda Bar Act 1974;

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

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

"respondent" means a barrister or registered associate
against whom a complaint of improper conduct has
been made under section 21 of the Act.

Preliminary inquiry into complaints
3 (1) Where the Bar Council refers a complaint of improper
conduct to the Committee, the Committee shall—

(a) give notice in writing to a respondent of receipt of such
complaint; and

(b) sit to make such initial inquiries as appear to the
Committee to be necessary to enable the Committee to
perform the functions assigned to it under paragraph (4)
of this rule.

(2) The Committee shall sit in such place and at such time as
the Chairman of the Committee may direct.

(3) A complainant and a respondent shall be parties to any
inquiry or investigation of a complaint of improper conduct.

(4) After making initial inquiries under paragraph (1) of this
rule, the Committee shall conduct a preliminary inquiry to determine
whether—

(a) a complaint is trivial, frivolous or lacking in merit; or

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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(b) a complaint has some merit; and

(c) where it is determined that a complaint has some merit,
the Committee shall investigate the complaint in
accordance with rule 5.

Dismissal of non-meritorious complaints after preliminary inquiry
4 Where, after conducting a preliminary inquiry into a complaint,
the Committee determines that the complaint is trivial, frivolous or
lacking in merit, the Committee may dismiss the complaint summarily
without further inquiry or investigation, and the Committee shall inform
the parties in writing of any such dismissal.

Investigation of meritorious complaints
5 (1) Where the Committee determines that there is some merit
to a complaint of improper conduct, the Chairman shall write to a
respondent in such terms as the Committee may from time to time
specify to inform him that—

(a) the Bar Council has received a complaint which may
constitute improper conduct by him in the terms
specified in the letter;

(b) the Bar Council has referred the complaint to the
Committee for investigation by it; and

(c) within 14 days of the delivery of the letter from the
Chairman to him personally or his place of business, he
may comment upon the contents of the letter in writing
or in person,

so however, that where the respondent is the one who has reported the
complaint, the Chairman may dispense with the measures in this
paragraph.

(2) Where a respondent replies to the Chairman's letter within
14 days of the date of its delivery to him, the Committee shall, as soon as
is practicable thereafter, investigate the complaint in the light of all the
material available to it, including the respondent's reply, to determine
whether a prima facie case of improper conduct is made out on the
evidence before it.

(3) Where a respondent does not reply to the Chairman's letter
within 14 days of the date of its delivery to him, the Committee may
proceed to investigate the complaint in his absence as if he has denied
the substance and merit of the complaint in its entirety.

(4) Where the Committee commences an investigation of a
complaint and is unable to make a prima facie determination on the facts

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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before it, the Committee may defer further investigation of the complaint
until it has conducted further inquiries.

Dismissal of meritorious complaint after investigation
6 After investigating a complaint in accordance with rule 5, the
Committee may, if it deems appropriate so to do, dismiss the complaint
summarily if it is satisfied that no prima facie case has been made out
against a respondent.

Informal treatment of complaint disclosing prima facie case
7 (1) Where a prima facie case of improper conduct is disclosed
by the complaint but, in the opinion of the Committee, the complaint
requires informal treatment the Committee may—

(a) advise a respondent in writing or orally in respect of his
future conduct; or

(b) direct that a respondent shall appear before the
Chairman of the Committee or some other person
nominated by the Committee for that purpose, to provide
an explanation for his conduct; and

(c) where the respondent consents, admonish him in
writing or orally if the Committee is not satisfied with his
explanation.

(2) If a respondent does not consent to an admonishment
under sub-paragraph (c) of paragraph (1) of this rule, the Committee may
deal with the complaint on a formal basis in accordance with rule 8.

Formal treatment of complaint disclosing prima facie case
8 Where a prima facie case of improper conduct is disclosed by a
complaint, and in the opinion of the Committee the complaint requires
formal treatment, the Committee—

(a) may direct that the complaint should form the subject-
matter of a charge before a disciplinary tribunal; and

(b) shall cause such charge to be formulated.

Complainant to be kept informed of progress of investigation of
complaint
9 The Chairman shall take such steps as are reasonably
practicable to inform the complainant of the progress and result of an
investigation into the complaint made against him.

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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Chief Justice to be informed of result of investigation
10 The Chairman of the Committee shall inform the Bar Council
and the Chief Justice in writing of the results of its inquiry into or
investigation of or both such inquiry into and investigation of a
complaint of improper conduct.

Formulation of disciplinary charges
11 (1) A committee representative may himself formulate a charge
in respect of a complaint of improper conduct and present a case before
a disciplinary tribunal, or he may arrange for the appointment of such
other counsel as may be necessary and expedient so to do for the proper
presentation of a complaint.

(2) A committee representative or counsel appointed by him
may only formulate such charge which is founded upon the same facts
or evidence from which the complaint arose.

Transmission of disciplinary charges to Chief Justice
12 (1) Upon the formulation of a charge by a committee
representative or counsel appointed by him, a committee representative
shall cause a copy of the charge to be transmitted to the Chief Justice.

(2) A committee representative shall, as soon as practicable
after he causes copies of a charge to be supplied to the Chief Justice,
invite the Chief Justice to exercise his power under section 19 of the Act
to—

(a) appoint a disciplinary tribunal to hear and determine
the charge;

(b) appoint a clerk thereto; and

(c) fix a date for a preliminary hearing before the tribunal in
respect of the complaint of improper conduct.

Chief Justice to transmit disciplinary charges and Convening Notice
to respondent
13 (1) Within 14 days of receipt of such charge from the
Committee the Chief Justice shall—

(a) appoint a disciplinary tribunal constituted in accor-
dance with section 19 of the Act; and

(b) where the Bar Council is not the complainant, invite the
Bar Council to forward to him forthwith in writing the
names of the members recommended by them for
appointment in accordance with section 19 of the Act;

(c) cause to be served on the respondent a copy of—

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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(i) the Rules;

(ii) the Convening Notice informing him about the
matters and rights in paragraphs (2) and (3) of
this rule.

(2) The matters referred to in paragraph (1) of this rule about
which the person complained against must be informed are—

(a) that a disciplinary tribunal has been appointed for the
purpose of hearing the complaint to determine whether
or not the complaint constitutes improper conduct by
him;

(b) that the tribunal may proceed to conduct a preliminary
inquiry and determine the complaint in his absence if he
does not appear or send counsel to appear on his behalf
in pursuance of sub-paragraph (g) of this paragraph of
this rule;

(c) the names of the members of the disciplinary tribunal;

(d) the name of the clerk to the disciplinary tribunal;

(e) the name of any witnesses which counsel for the Bar
Council intends to call to give evidence and any witness
statements made by them;

(f) a list of the documents upon which that counsel intends
to rely at the hearing;

(g) the date fixed for the preliminary hearing, and the time
when and place where such a hearing will be held.

(3) The rights referred to in paragraph (1) of this rule are the
right of the person complained against to—

(a) object, in accordance with rule 15, to the appointment of
one or more members of the disciplinary tribunal;

(b) represent himself or be represented by counsel before a
disciplinary tribunal;

(c) deliver a written answer to a charge if he thinks fit,
without prejudice to his right to appear and take part in
disciplinary proceedings; and

(d) ask a disciplinary tribunal to direct that he shall be
permitted to inspect, request and take copies of any
documents referred to in the list of documents in the
Convening Notice served on him.

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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Transmission of documents to respondent
14 A committee representative shall, as soon as practicable after the
issue by the Chief Justice of a Convening Notice and its service on a
respondent or in any event not later than 10 days before the date of a
preliminary hearing, serve on the respondent—

(a) a copy of the statement of the evidence of each witness
counsel intends to call in support of a charge made
against him; and

(b) a complete list of the documents upon which counsel
intends to rely.

Objection to member of disciplinary tribunal by respondent
15 (1) A respondent may, upon receipt of a Convening Notice
served on him under section 22 of the Act, and subject to paragraph (4)
of this rule, make an objection in writing to the Chief Justice to the
appointment of one or more of the members of the disciplinary tribunal
named in the Convening Notice, and in so doing the respondent shall
specify the ground for any such objection.

(2) Upon receipt of an objection in writing from a respondent
the Chief Justice shall, if he is satisfied that the objection is properly
made, revoke the appointment of the member of the disciplinary tribunal
whose appointment the respondent has objected to, appoint another
person to serve on the disciplinary tribunal in that person's place and
notify the respondent of such appointment and the name of the member
of the tribunal so appointed.

(3) Subject to paragraph 4 of this rule, where a respondent
receives from the Chief Justice the name of the new member or members
of a disciplinary tribunal, the respondent shall have mutatis mutandis in
relation to any new member so appointed the right to object to that
appointment in accordance with paragraph (1) of this rule.

(4) No objection to the appointment of any member of a
disciplinary tribunal shall be upheld solely on the ground that the
member appointed thereto has or may have knowledge of a previous
charge of improper conduct or breach of proper professional standards
against the respondent or any finding in respect of any such charge, or
of any sentence imposed on the respondent.

Transmission of Convening Notice to Committee and disciplinary
tribunal
16 (1) As soon as practicable after he appoints a disciplinary
tribunal and a clerk thereto, the Chief Justice shall cause a copy of the
Convening Notice to be forwarded to the Committee to inform the
Committee of the names of the persons who will constitute the

BAR PROFESSIONAL CONDUCT COMMITTEE RULES 1997

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disciplinary tribunal which will hear the case that is the subject-matter
of a charge transmitted to him by the Committee.

(2) Not more than 28 days after the Committee receives a copy
of a Convening Notice containing the names of the persons who will
constitute a disciplinary tribunal and the name of the clerk thereto, the
committee representative shall—

(a) cause a copy of the charge, Convening Notice and the
Rules to be transmitted to each member of the
disciplinary tribunal; and

(b) inform the members of the disciplinary tribunal and
clerk thereto of the day fixed for a preliminary hearing in
respect of a complaint of improper conduct.

(3) A committee representative shall make—

(a) the necessary administrative arrangements for the
summoning of witnesses;

(b) the necessary administrative arrangements for the
production of documents; and

(c) any other necessary arrangements,

for the proper presentation of a complaint of improper conduct before a
disciplinary tribunal.

Imposition of conditions on person complained against pending
appeal
17 Where, after determination of a charge against a respondent, the
respondent files a Notice of Appeal against such determination and a
disciplinary tribunal has deferred the coming into operation of his
sentence under rule 21 of the Bar Disciplinary Tribunal Rules 1997
pending the outcome of his appeal, the Committee may make a
recommendation to the tribunal for terms to be imposed on such a
respondent in respect of his conduct pending the hearing of his appeal.