The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bar Association’s president has conceded that the profession is “not properly regulated”, adding: “We want to become a 21st century self-regulatory body.”

Elsworth Johnson, in a recent interview with Tribune Business, said there was a need for Bahamian attorneys to gain professional certification and be “licensed every year” if it was to become truly self-regulating.

He praised the attorney general, Allyson Maynard-Gibson, for recognising the need for such reforms, which would also include ongoing professional training/education requirements.

“The Bar at the moment is not properly regulated,” Mr Johnson admitted to Tribune Business. “There’s a need for professional certification, a need to be licensed every year like any other competent profession. We want to become a 21st century self-regulatory body.”

Mr Johnson said that other potential reforms would also involve the issuance of ‘certificates of good standing’ to attorneys, which would signal to existing and potential clients that they conducted themselves appropriately.

While the Bar Association is already self-regulating to an extent, via its ethics and disciplinary committees, the proposals outlined by Mr Johnson go much further and would bring the legal fraternity into line with the practices of other professional bodies, such as the architects and engineers.

There has also been criticism from some quarters that the Bar’s disciplinary processes are ineffective, and fail to properly punish attorneys for transgressions when client complaints are proven.

The US government recently issued such criticism, complaining that the Bar Association was failing to pursue complaints about the conduct of member attorneys.

The State Department’s annual investment climate statement on the Bahamas said complaints submitted to the Bar’s Ethics Committee were “frequently unanswered”, raising questions about whether foreign investors enjoyed sufficient legal protection.

“The [Nassau] Embassy is aware of several complaints about local attorneys, primarily involving real estate transactions, which have resulted in significant losses to American investors,” the US report charged.

“Referrals to the Bahamas Bar Association and its Ethics Committee for appropriate disciplinary action in these matters often go unanswered.”

Mr Johnson, meanwhile, said calls to ‘liberalise’ the Bar, and open it up to specialist foreign financial services attorneys and law firms, were really an issue for the Government to deal with via Acts of Parliament and Immigration policy.

He added, though, that ‘liberalisation’ was a misleading term, as those advocating such a move were really calling for the ‘free movement of people’ in and out of the Bahamas.

Acknowledging that opinions in the legal profession were split on the issue, and that the Bar and its members would have to “once and for all” settle the issue, Mr Johnson said its Financial Services Group (FSG) had “brought this matter to the fore again”.

The FSG, a Bar committee featuring Bahamian attorneys specialising in financial services work, has written to the Bar Council requesting $6,000 to conduct a survey of members’ view on liberalisation.

While indicating he was not in favour of such a development, Mr Johnson acknowledged he was just one voice in the debate, and the Bar was both “democratic and open to freedom of expression”.

He added: “What is going on now, the Bar must address it and address it fully. The whole concept of what persons are saying is liberalisation is not entirely correct.

“People want freedom of movement, persons to come in and out, but they’re saying only for specialist areas.”

Senior attorneys, such as Bryan Glinton, Brian Moree QC and Michael Paton, who have advocated for ‘liberalisation’, have been quick to point out that such an ‘opening up’ will not be widespread, with areas such as family and criminal law reserved for Bahamians only.

Mr Johnson, though, questioned why, more than 40 years after independence and with the considerable investment in the Eugene Dupuch Law School and other facilities, the Bahamas had seemingly been unable to train sufficient local attorneys with the necessary financial services expertise.

“Something has to be fundamentally wrong and flawed with the system of legal education in the Bahamas,” he added, if this nation was not adequately preparing its attorneys to engage in the international financial services industry.

“We have committed millions of dollars to train our people, and I can tell you they are just as good and just as bright as any lawyer around the world,” Mr Johnson said.

“I know there are very senior members of the Bar in favour [of liberalisation], and other very senior members who say that if there are qualified, committed Bahamians, give them the work.”

He added: “This is an Immigration matter, and a matter for Parliament. At the end of the day, for the Bar, we believe in freedom of expression and democracy, but we see this as an Immigration issue. We don’t make the laws, and the Government will have to determine to change it through a parliamentary Act.”

Mr Johnson, though, said he believed the current system - where foreign attorneys were allowed to appear before Bahamian courts if the necessary expertise was not available at the Bar, or it was “conflicted out”, as happened in the Baha Mar case - was working well.

He suggested that ‘liberalisation’ would see the legal profession end up like the tourism industry, where all the major assets were foreign owned.

“I believe in building a sovereign Bahamas where there are some benefits to being a Bahamian once you are qualified, and I believe in building a sovereign Bahamas where it’s good to allow someone other than a Bahamian to be able to work if they are needed,” Mr Johnson said.