The head of the Bar has expressed ‘elation and relief’ as the Court of Appeal held that lawyers must be members of the association in order to practise here, under current law.
In a landmark judgment written by Justice of Appeal Kaye Goodridge, the three-panel court struck down a lower court ruling last August by Justice Pamela Beckles that an attorney-at-law’s mandatory membership of the bar association was unconstitutional.
Justice Goodridge had ruled that Section 44 of the Legal Profession Act which compels membership of the Bar Association was in violation of the right of freedom of association guaranteed under Section 21 of the Constitution’s bill of rights.
In reaction to the ruling, president Liesel Weekes declared that the Barbados Bar Association is not just a professional association but also a regulatory body that acts in the public interest.
“I am elated and relieved,” said Weekes, who before the appellate justices’ decision feared the legal profession was in jeopardy.
She told Barbados TODAY the scope of the bar association’s authority stretches beyond mere association to oversight of the actions of attorneys in the public’s interest.
“The bar association sets up a disciplinary committee which maintains the standards of the profession.
“We have certain responsibilities to the public including a compensation fund, which allows members of the public who have suffered detriment as a result of the dishonesty of lawyers to receive a grant from a fund which is managed by the bar in the public’s interest.
“The court agreed with us that these functions are sufficiently important and in the public interest to be a necessary qualification on any freedom to associate which an attorney may claim is fettered by section 44 of the Legal Profession Act which requires you to pay a fee to validate your practising certificate.”
The issue became contentious last year when attorney Tariq Khan applied for since-disgraced lawyer Vonda Pile to be denied the right to represent her client because she did not pay her subscription fee to the bar association and therefore did not possess a valid practising certificate.
Pile had argued the annual subscription was an imposition on her guaranteed right to freedom of association under Section 21 of the Constitution, making void section 44 and 45 of the Legal Profession Act, which requires an attorney to pay the annual subscription fee and become a member in order to receive a practising certificate.
Khan appealed Justice Beckles High Court decision last September and on Tuesday it was overturned.
In a 19-page judgement, Justice Goodridge said: “In Barbados, the right to practise law, like medicine, dentistry and other professions is regulated by statute.
“Section 3 (1) of [the Legal Profession Act] Cap. 370A mandates the Registrar of the Supreme Court to keep a register of attorneys-at-law, to be known as “the Roll” on which shall be registered the name of every person entitled to practise law in Barbados.
“And according to section 10, while every person whose name is entered on the roll shall be known as an attorney-at-law, he/she cannot practice unless the person holds a valid practising certificate and pays the annual registration fee.”
Praising the decision as “well-reasoned”, bar president Weekes said any conclusion to the contrary would place the bar association’s regulatory role “under siege”.
She said: “It would be left up to each practising attorney whether they would submit to the bar and whether they were going to be able to fund the kind of regulation required of the profession in order to ensure the highest standards are maintained by practitioners.
“It really would have presented a significant challenge and would have been detrimental to the public if the court had found otherwise and I would want to venture as far as to say that if it had that some steps would have been taken to have this tried at the highest court in Barbados. It is that significant.”
Last month, Pile convicted of stealing $191,416.39 belonging to her former client, Anstey King, between April 2009 and October 2010.
She was remanded to prison pending her sentencing.
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