Benjamin Cardozo, a great justice of the US Supreme Court, averred that for lawyers, “membership of the bar is a privilege burdened with conditions. A fair private and professional character is one of them”.
This was his answer in the case of a crooked lawyer named Jacob Rouss who, after turning State’s witness and receiving immunity from prosecution for his part in a bid to obstruct justice over a bribery scheme, appealed against his later disbarment.
Cardozo, then a New York Appeals Court judge in 1917, further said: “Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. Whenever the condition is broken; the privilege is lost.”
Cardozo reached back in time and beyond the sea for support in his view that disbarment was not retribution. He went back to Lord Mansfield, the English jurist who famously ruled that slavery was illegal in England of 1772, a full six decades before Emancipation.
“The question is,” said Mansfield, “whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. It is not by way of punishment; but the court, on such cases, exercise their discretion whether a man whom they have formerly admitted, is a proper person to be continued on the roll or not.”
Mansfield, Cardozo and countless jurists since have had to consider the fitness of members of the legal profession if it is to remain a cornerstone of a fair and just society. Lawyers are entrusted with upholding the rule of law, protecting the rights of all individuals, and ensuring that justice is served, even when they appear in adversarial roles.
The reputation of the legal profession is therefore of the utmost significance, not merely in the dispensing of criminal justice but in public administration, civil and family matters, property and commercial law, and in every endeavour which relies on the faithful application of the law for the good order of our society. Yet, recent events in Barbados have cast a dark shadow over the profession, with several high-profile cases of lawyers being prosecuted for theft and other malfeasance. This has not only tarnished the reputation of individual lawyers but brings shame to the legal profession; these things are not in dispute.
The Barbados Bar Association on Tuesday reminded us of a legal technicality. While bar associations in many jurisdictions are legally empowered to regulate the profession, ours is not. The BBA takes its historical queue from the Law Society of old, the English guild that dates back to the bygone era of barristers and solicitors. There is a Legal Profession Act that sets down the rules for the conduct of today’s attorneys-at-law; this is the law that 50 years ago ended the distinction between barristers and solicitors.
That law has been cited again with last week’s appearance of convicted felon Vonda Pile as a presiding attorney-at-law in the District ‘A’ Traffic Court. Pile was first sent down in 2019 for stealing her client’s money. After appealing the decision, the court’s verdict was upheld and she went back to prison to serve out her sentence.
Certainly, there is a Disciplinary Committee which has a duty to report recommendations to the High Court and Court of Appeal but it is now three years since the Attorney General first indicated that changes were coming to the Legal Profession Act to make it easier to punish attorneys-at-law who misappropriate their client’s funds.
Yet, the association must go beyond its “buyer beware” caveat in prompting members of the public on approaching attorneys for legal services. It must work to restore public trust in the legal profession by promoting transparency, accountability, and ethical conduct among its members.
It is time for the government to create an independent Bar Standards Board to regulate the profession in the public interest and enforce the highest standards. The practice of law in this country is sufficiently mature and is easily the oldest legitimate profession in our nearly 400 years of history. Such a board would doubtless also be a boon to our standing in the international financial services industry and for scrutineers of commercial law for would-be investors.
The Barbados Bar Association simply does not have the necessary resources to educate the public on the standards of quality to which it has a right to be accustomed. A quick glance at the association’s website draws a blank under the link marked “Code of Ethics”. Its Frequently Asked Questions (FAQs) on “Complaints Against Attorneys-At-Law” are left unanswered.
It is essential that the people be educated about their rights and the role of lawyers in upholding the rule of law. An independent bar standards agency would be required to promote awareness of the legal profession and its functions, as well as the importance of ethical conduct in the practice of law.
The government must take a proactive approach to address issues of professional misconduct and the bar association, as a professional body, must provide support to those who may be struggling with personal or professional issues that could lead to misconduct. The law – as Justice Cardozo suggested – must regard disbarment not as an act of retribution; convicted criminals who pay their debt to society should not be forced to wear an eternal scarlet letter. Nonetheless, it is entirely in the public interest and for the good of the whole profession that by law, a lawyer who is convicted of serious felonious conduct in the course of duty be summarily struck from the roll.
We believe that it is only by taking such measures that the legal profession can hold the privilege of public trust and continue to serve justice and good order if our nation is to be world-class in more than slogan.