Caribbean Bar Associations have been slowly feeling the tides of change in how Attorneys-at-Law view their association and membership of their jurisdictional Bar Associations. This has either resulted in constitutional challenges in various jurisdictions to the notion of compulsory membership to Bar Associations or legislatures acting on their own initiative in abolishing compulsory membership and making relevant amendments to Legal Profession Acts.
In Belize for instance, the Legal Profession Act was amended in 2014 which inter alia provided for the establishment of a General Legal Council to govern all legal profession matters, including disciplinary proceedings and deleted certain provisions which mandated the payment of Bar Association dues by Attorneys-at-Law. In Jamaica, The Jamaica Bar Association (JAMBAR) has been a voluntary association for several years and this jurisdiction has also established a General Legal Council to govern its legal profession matters.
Most recently in Barbados, that Bar Association faced a constitutional challenge to its compulsory membership on the grounds that it infringed on the right of freedom of association and that therefore Section 44 of the Legal Profession Act which mandates compulsory membership should be struck down as being unconstitutional. This week, the Barbados Court of Appeal ruled that the functions and objectives of the Barbados Bar Association carried out in the public interest, was sufficient to limit the fundamental right of freedom of association thereby making compulsory membership to the Barbados Bar Association permissible. The full decision can be read here.
It is important to note that in setting aside the judgement of Beckles J who held that compulsory membership infringed on the right of freedom of association guaranteed by the Constitution, the Court of Appeal considered a major procedural issue raised by the Appellant. The Court of Appeal held that the trial judge was procedurally incorrect when she determined that submissions made by counsel where constitutional issues were raised, entitled her to treat such submissions as a proper application under Section 24 of the Constitution which deals with applications where the fundamental rights of an individual under the Constitution has been contravened. On this point, the Court of Appeal held that no proper application for the enforcement of a constitutional right in accordance with Section 24 of the Constitution was before the trial judge. The Court of Appeal further found that the trial judge’s failure to consider and determine that the Attorney General and the Barbados Bar Association should be served with copies of the documents relevant to the proceedings and be given an opportunity to be heard amounted to a breach of the rules of natural justice and procedural fairness. On this issue, the Court of Appeal found that the trial judge failed to consider sections of the Redress Rules which state that where constitutional issues are raised in a matter, the Attorney General must be served with court documents and be given an opportunity to be heard. Further it found that because the Barbados Bar Association was a party that is directly affected by Section 44 of the Legal Profession Act, (the alleged inconsistent section with the Constitution and the right to freedom of association) it was also entitled to be given an opportunity to be heard and to be served with copies of the proceedings.
The implications of this decision are that Attorneys-at-Law who wish to practice in Barbados must pay Bar Association dues. For the time being it is not certain whether this decision will be appealed to the Caribbean Court of Justice (CCJ). However, given the continued controversy surrounding compulsory membership and the continued criticism and concerns of Attorneys-at-Law relative to the role Bar Associations play in serving its membership, it is submitted that such challenges to compulsory membership to Bar Associations including the Barbados Bar Association, will continue.
In the case of Belize, in the absence of any decision by any Court ruling that compulsory membership infringed on the constitutional right of freedom of association, Parliament acted to delete the infringing sections of the Legal Profession Act and the functions and objectives of the Belize Bar Association, whose functions and objectives were similar to that of the Barbados Bar Association, were given to or otherwise imposed on the General Legal Council and regulatory powers were also given to the Council. Belize and Jamaica provide clear examples that it is therefore not impossible nor inconceivable for another body such as a General Legal Council to adequately and efficiently regulate the legal profession of a jurisdiction. This can be done while also having an Association for Attorneys-at-Law that represents its membership and still carry out many of the functions and objectives raised by the Barbados Court of Appeal without legislation mandating that such membership be compulsory thereby potentially infringing on one’s fundamental right to freedom of association.
What is happening in the region in relation to compulsory bar membership is certainly not unique. In the United States, while the American Bar Association (ABA) has voluntary membership, various state bar associations may require state attorneys to pay bar membership fees. Approximately 30 out of 50 States require compulsory memberships. However, these laws have been and continue to face various challenges on constitutional grounds and on the right to freedom of association.
This continued wave of striking down or challenging compulsory membership has forced Bar Associations to come to terms with its own mortality. The decision of the Court of Appeal in Barbados has not and should not change this. It should rightfully force Bar Associations to assess their current offerings to their membership. They should ask whether their current offerings or benefits are attractive, whether they adequately represent the interests of their membership and if not, what should they improve on; after all, they must be able to appeal to Attorneys-at-Law to voluntarily join the Association (in the case of jurisdictions with voluntary membership). A robust Bar Association should be able to provide:
Continuous legal education opportunities in the form of seminars, workshops or training sessions;
Discounts or attractive packages for case research or practice management software or solutions or other business solutions and education on such practice management or business solutions which serve to improve law practices;
Representation of its members/membership on various issues which may garner public attention.
Bar Associations should also be seen to be up to date on current legal issues happening within the jurisdiction especially when such legal issues are novel or generate massive public interest and should be able to comment on such issues.
In Jamaica, Justice Bryan Sykes was named as the new Chief Justice last year, following the retirement of former Chief Justice Zalia McCalla. However his subsequent permanent appointment was not without controversy. Initially Prime Minister Andrew Holness sought to make Justice Sykes appointment as Chief Justice a temporary one, stating that it would be made permanent based on his performance in the role. This temporary appointment drew sharp criticism from JAMBAR and other members of the legal profession as well as from the wider public as this had the affect of undermining Justice Sykes' impartiality and independence and it was seen as undermining the notion of separation of powers by interfering with the judiciary. After much protest by various civil society organisations, Attorneys and even judges, Justice Bryan Sykes was permanently appointed by Prime Minister Holness. JAMBAR is a voluntary Bar Association whose functions and objectives are also similar to that of the Barbados Bar Association. This very active Bar Association has been vocal on some critical issues affecting the legal profession within the last few years including legal privilege issues raised in reporting source of client’s funds in respect of the Proceeds of Crime Act.
More recently in Trinidad and Tobago, the Law Association of Trinidad and Tobago and the Assembly of Southern Lawyers were vocal critics of a controversial amendment to the Freedom of Information Act (FOIA) which sought to extend the time public bodies should respond to requests for information to up to 90 days. Sustained outcry and criticism of the amendment eventually resulted in the withdrawal of the amendment in June of this year.
In Barbados, the Barbados Bar Association recently joined public outcry in raising its concern relating to a man who had been languishing in prison for almost 10 years without having been brought to court to enter a plea for a minor criminal offence he had been charged with.
Regionally, Bar associations have faced criticism when it comes to disciplining Attorneys-at-Law. Bar associations have been critized for either taking too long to discipline Attorneys who misbehave or not taking any action at all.
In the case of Barbados, the Disciplinary Committee of the Bar Association does not have the power to impose sanctions on Attorneys-at-Law who are found to have conducted themselves inappropriately. It has the power to make recommendations and such cases are then referred to the High Court. These cases may then take a prolonged period of time to be dealt with due to the usually overburdened court system. A disciplinary committee or some other council or tribunal dedicated to solely disciplining Attorneys-at-Law would certainly mean that such cases will be adjudicated expeditiously.
In Jamaica and Belize, their General Legal Councils are empowered to discipline Attorneys-at-Law.
The benefits of a fully functioning, efficient and effective disciplinary mechanism are that:
· Attorneys-at-Law may feel more compelled to adhere to relevant ethics codes and legislation as they would be aware that misbehaviour on their part would be dealt with swiftly and obviously have the effect of impacting their career;
· the general public will have more confidence in a system which allows them to seek relief in addressing grievances against Attorneys thereby potentially having the effect of reducing criticism of Attorneys-at-Law generally.
Bar Associations in other regional jurisdictions who have either not had their compulsory membership challenged or are in the process of being challenged should give serious consideration to overhauling its entire structure in order to ensure that the needs of its members or being met. A Bar Association that provides little or no benefits to its members and makes little or no contribution to society certainly cannot hope to appeal to Attorneys-at-Law to join nor can it hope to be seen by society as a useful body/mechanism in holding public officials or bodies accountable for upholding the rule of law in any jurisdiction.
The survival and relevance of Bar Associations now depend on their ability to shift their mindsets from compulsory membership and their dependence on guaranteed membership, to one that is constantly taking into account its attractiveness to Attorneys-at-Law to be associated with a Bar Association, the added benefits it provides for its membership and the role it plays in tackling issues affecting society.