The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bar Association will

“determine once and for all” its position on the free movement of labour, its president pledged yesterday, after a group of attorneys brought legal ‘liberalisation’ to the fore again.

Elsworth Johnson acknowledged that the profession was split on whether to allow specialist foreign attorneys and law firms to practice in the Bahamas, in a bid to attract more financial services business to this nation.

While not directly expressing his opinion, Mr Johnson indicated he was against such an opening up, telling Tribune Business that “something has to be fundamentally wrong and flawed with the system of legal education in the Bahamas” if this nation was unable to produce enough attorneys to meet the demands of its ‘second economic pillar’.

Suggesting that such ‘liberalisation’ could also undermine Bahamian ownership in the legal profession, the Bar president said he had told government ministers that the issue was one for them to decide via Immigration law and policy.

Mr Johnson was speaking after a group of Bahamian attorneys, specialising in financial services-related legal work, recently raised the issue of legal profession ‘liberalisation’ again.

The Financial Services Group, which is a Bar Association committee, wrote to the Bar Council on June 20, 2016, proposing a survey be conducted of all member attorneys to determine their views on whether the sector should be opened to ‘free movement’ of specialist foreign attorneys.

The letter, which has been seen by Tribune Business, requests a meeting with the Council to discuss the Financial Services Group’s initiatives “related to the proposed liberalisation of the Bahamas Bar”.

“You may be aware that the Financial Services Group has formed a working group for the purpose of analysing the issue of liberalisation and benchmarking experiences, challenges and opportunities in jurisdictions that are similar to ours, which have a ‘liberal’ Bar,” the letter said.

The Financial Services Group added that ‘liberalisation’ was “a matter of significant professional concern”, and argued that the survey would produce “a road map to constructive reform of the legal fraternity”.

It attached for the Council’s benefit a copy of the proposed survey that it wanted to send to Bar Association members, adding that this was “imperative” to resolving the issue.

The Financial Services Group letter argued that the survey, which would be conducted by former Central Bank economist, Gabriella Fraser, principal of The Vivian Group, would also allow the Bar Association to better respond to its members’ needs and craft “a unified, qualified and constructive response” to the Government on the issue.

The letter, signed by Dwana Davis-Imhoff, Anastasia Campbell, Andrew Rolle, Simone Johnson-Longley, Elton Gibson and Thea Paul, asked the Council to reply by August 8, 2016, as to whether it would finance the survey’s costs.

The survey document itself, which has also been seen by Tribune Business, sets out the rationale for the assessment.

“Financial services has long been the second pillar of the Bahamian economy and has provided many opportunities for Bahamian attorneys. However, we have been criticised for the dearth of attorneys who currently practice in the area,” the survey document added.

“The number of experienced practitioners in these specialty areas has attracted comments from international partners and local practitioners regarding the need to reform local requirements for admission to practice law in the Bahamas through the amendment of the Legal Profession Act (LPA) in order to permit non-Bahamian specialists to be called to the Bahamas Bar (other than via the special admission and registered associate provisions).

“It has been suggested by persons within and outside of the Bahamas that to permit non-Bahamians to practice law in the Bahamas would provide an opportunity for specialists to train local attorneys and facilitate (through partnership, training and other participation) the expansion of the pool of professionals who are able to offer services and enhance the product offering provided by this industry.”

This message was reinforced by The Vivian Group’s proposal, which added: “The legal profession in the Bahamas faces ongoing criticism and concern regarding its capacity to meet financial services sector needs.

“Specifically, that the rate of deepening and expansion in expertise in specialised financial services needs areas have not kept pace with that industry’s advances and technical service needs.

“[That is] a critical issue for that industry, which broadly considers this shortfall in legal services capacity to be a threat to the jurisdiction’s competitiveness. These capacity concerns have also given way to broader questions of reform in the legal sector, including liberalisation of the Bahamas Bar.”

Prime Minister Perry Christie, and his current and former financial services ministers, Hope Strachan and Ryan Pinder, have all made similar arguments in recent years.

Each has said that the inability of foreign, specialist financial services attorneys to practice in this nation is costing the Bahamas business, as the legal profession lacks the base of expertise and necessary contacts to attract it.

Senior attorneys, such as Brian Moree QC and Bryan Glinton, have also called for a similar opening up, but with requirements for ‘knowledge transfer’ and that certain practice areas, such as family and criminal law, be reserved for Bahamians only.

Others, though, such as Gregory Moss, Paul Moss and Harvey Tynes QC, have been opposed to any such ‘liberalisation’.