The following article was written and submitted by the Integrity Group Barbados.
“In Barbados the concept of self-regulation is an illusion, because comprehensive machinery for that regulation can hardly be said to exist.” – The late Sir Roy Marshall, former chairman of the National Commission on Law and Order – The Nation Newspaper, March 18, 2011.
The report in the Sunday Sun of November 5 which carried the headline “Disbarred Lawyer Missing” told the sad story of a former client who is owed BDS$601,000 by a disbarred attorney.
The report stated that in 2014, the Court of Appeal had ordered him to repay the money, yet up until now the client has not seen a penny. This is not an isolated case, as there have been other recent instances where members of the legal profession have been brought before the courts for misappropriation of clients’ funds.
While the lawyers involved have been brought to justice, and the Disciplinary Committee of the Bar Association has done its duty in having these lawyers disbarred, their clients have been left in the lurch having lost large sums.
Perhaps it was for the foregoing reason that, in early October, Arthur Holder, Speaker of the House, on being elevated to Senior Counsel, reminded the legal profession of the importance of integrity.
In an interview with the local media, he asserted that, “The money of clients does not belong to the attorney. You do not mess with clients’ funds and I believe that if you do not stick to that oath and you take clients’ money, you should be treated and done like as you would do a normal person, that you should feel the full weight of the law if you steal clients’ money. It is as simple as that.”
The foregoing must be of great concern to the Barbados Bar Association and the many lawyers who serve their profession with distinction and adhere to the highest levels of integrity. There can be no doubt of the position of the Bar Association on this issue, as one of the first clauses in their Code of Ethics states that, “An attorney-at-law shall maintain his integrity and the honour and dignity of the legal profession and of his own standing as a member of it and shall encourage other attorneys-at-law to act similarly both in the practice of his profession and in his private life and shall refrain from conduct which is detrimental to the profession or which may tend to discredit it.”
Moreover, the Legal Profession Act, which first came into operation in 1973 and was last revised in 2004, states that the Judicial Advisory Council may make rules generally as to the keeping and operating of bank accounts or clients’ money by attorneys-at-law. The legislation further states that the rules may also require an attorney-at-law, in such cases as may be prescribed by the rules to keep on deposit in a separate account at a bank for the benefit of the client. The Legal Profession (Accounts) Rules, which were also enacted in 1973, provide further guidance on how clients’ funds should be managed.
Barbados has been served well by our legal profession, yet something is badly wrong and needs to be fixed. It has been over two decades since the late Sir Roy Marshall was invited to chair the National Commission on Law and Order and called for changes in how members of the legal profession were policed.
Sir Roy stated that, “In Barbados the concept of selfregulation is an illusion, because comprehensive machinery for that regulation can hardly be said to exist”.
He highlighted that in Britain there is strong and effective legislation to regulate the conduct of legal practitioners, and a very powerful, wellfunded, and serious enforcement body – the Law Society – which ensures that the client is protected.
In February 2015, Andrew Brathwaite, then vice-president of the Institute of Chartered Accountants of Barbados (ICAB), in an interview with the Nation Newspaper, stated that “Proper accounting for client money can be complex, especially where there is a large number of clients and client transactions and errors may occur inadvertently despite the best of intentions. Even where the lawyer has employed qualified accounting staff to supervise record keeping, independent verification may still be advisable”.
He suggested that “Independent verification may include periodic audit of client accounts, or limited procedures to verify that the recommended accounting systems and controls are in place and operating effectively”.
Brathwaite also pointed to Britain’s Law Society’s Solicitors Regulation Authority (SRA) as offering a detailed guide for the protection of client accounts.
The following are summary extracts from the SRA regulations on how legal firms and sole practitioners are to deal with money belonging to clients. The regulations advise that legal firms and sole practitioners shall:
• Keep client money separate from money belonging to the legal firm or sole practitioner.
• Ensure that client money is paid promptly into a client account.
• Ensure that client money is available on demand unless an alternative arrangement has been agreed in writing with the client.
• Ensure that client money is returned promptly to the client, or the third party for whom the money is held, as soon as there is no longer any proper reason to hold those funds.
• Only withdraw client money from a client account for the purpose for which it is being held or following receipt of instructions from the client, or the third party for whom the money is held.
Whilst the local regulations also cover the foregoing areas, IGB is of the view that proactive monitoring and compliance of the legal profession should be far more effective and supports the suggestion from Brathwaite that we draw on Britain’s SRA to strengthen our own regulations in Barbados.
The absence of a strong monitoring framework for the legal profession in Barbados has persisted for too long. IGB understands that the Bar Association has requested changes to strengthen the Disciplinary Committee.
We hope that the lawyers that sit in our House of Assembly will work to bring the necessary changes to correct this glaring deficiency. The reputation of our legal profession is at stake.