MM writes: It is obvious that several opposing interests are having a difficult time pinpointing the exact amendments that should be made to the Legal Practitioner’s Bill 2016 – apparently the need to address some outstanding issues within the legal profession has been on the table in one form or another for about 15 years according to this article.
I guess it is by now obvious to all that there is simply something that is not right within the document, perhaps a little left-leaning, so to speak – or even a little unjust.
The legislation in any country serves to protect all its residents and visitors, but in any and all countries the legislation serves to protect its natives and/or most vulnerable citizens first and foremost. As we can see the world taking a shuffle to further secure borders and protect country interests and assets, I should imagine it is only natural to see such shuffles in our small islands as well.
With that said, despite the enduring efforts to bring forth a final document that truly addresses all the concerns of Caymanian attorneys and foreign-owned firms, I take this opportunity to point out some of my humble observations – pretty simple adjustments that we may all agree would help to shuffle this document a little more to the right…
I understand that there have been others who have expressed concern with the bill as it has now been drafted, and given the detailed manner of which such concerns were brought forward by some attorneys in this letter expressing concern as to the manner in which the bill had been consulted upon, it is difficult to think that any reasonable ministers can move forward on such a document.
First things first:
The provisions within the bill establish the “Cayman Islands Legal Practitioner’s Association”. This association shares a striking resemblance to the two bodies already in place to be watchdogs for the legal industry’s interest. However, this body, though completely made up of private sector attorneys, will have many legal privileges, including the same immunity found in all the Government Authority laws:
“Clause 16 provides an immunity for the Association, its officers, employees, agents, representatives, and others for anything done in the discharge or purported discharge of a function under the Law unless done or omitted to be done in bad faith.”
I am not sure how this comes across to anyone else, but let us remember that Clause 5 of the bill which deals with the establishment of the association states that ALL attorneys-at-law are members of the said association.
Quick suggestion for Clause 5 – because this is a law, it is imperative to be specific; this clause should perhaps read “provides that all attorneys-at-law permitted and licensed to practice law within the Cayman Islands are members…” versus “provides that all attorneys-at-law are members…”
Let us remember that we have several law firms on-island with multi-jurisdictional offices and if such restriction is not written into law, should a suit arise for whatever reason, Clause 5 will make provisions for Clause 16 to be used to protect any and all attorneys on a local law firms staff roster, regardless of jurisdiction or license to practice locally. It may be a court battle, but the possibility of Clause 16 stretching to include such employees is open with the original wording.
Clause 11 deals with the Council of the Association and prescribes that the council be made up of eight attorney members “ordinarily resident” in Cayman, of which at least five must be Caymanian. If the intention of this bill is to ensure Caymanian attorney inclusion and promotion, then why not six?
Another point to consider in Clause 11 is that only 2 of these members will be representatives of the smaller law firms “firms with fewer than 10 attorneys”.
Clause 11 brings me to Clause 15 which discusses the required quorum for a council meeting.
Clause 15 states that a quorum for said meeting is one half the members at the time.
- Total members = 8
- Caymanian members = 5
- Other members = 3
In other words, a meeting can commence with 1 Caymanian member and 3 “other” members? Can a minister kindly confirm please?
Perhaps we may want to have a closer look at this and add a Clause 15(b) that insists a quorum must have at least 3 Caymanian attorneys to proceed.
Clause 21 is slightly disturbing because there are over 700 licensed attorneys in the Cayman Islands and yet eight council members are given the power under this bill to:
“provides that the Council may make rules prescribing any matter which under the Law is required or permitted to be prescribed by rules and generally for the better carrying out by the Council of its functions under the Law and for the direction, government and control of the Association and its members.”
This brings be back again to Clause 11, the council and its 8 members. If there are eight members, two of which must be from smaller firms, that means six of the council members can be from any major law firm in Cayman. In addition, Clause 11 allows that up to two members of the council can be from the same law firm.
In an attempt to break this down, we can have eight council members, of which six can be from the major law firms (75% of the council) and two of those six can be from the same major law firm.
Back to Clause 5. Clause 5 indicates that ALL attorneys-at-law are members of this association, which is governed by these eight members, of which six can be from major law firms, of which two can be from the same major law firm.
With over 700 attorneys licensed to practice Cayman Islands law and there being four major law firms in Cayman, which employ the bulk of the licensed attorneys, and a bill being proposed that makes legal provision for an association to be formed of ALL attorneys licensed to practice law in Cayman, whether they willingly wish to be a part of it or not (which is governed by eight members, of which six can be from major law firms), there is an obvious, severe, biased flaw in this bill.
So, what we appear to have here is a bill, that is to be written in to law, that gives power to an association, headed by eight private-sector attorneys, of which up to six can be from major law firms, AND provided with the “bad-faith” immunity of a government authority AND being given the option under Clause 21 to enact rules on any and all attorneys-at-law working in the Cayman Islands.
Clause 25 and 26 finally addresses the current situation of local law firms having multi-jurisdictional offices and attorneys who practice Cayman Islands law overseas. This ability is indeed valuable for Cayman economically and assists with making the Cayman Islands more competitive, but it also means that any attorney who has been accepted to practice law at one point or the other and maintains their licence can continue to do so and offer legal advice. They can keep this licence by continuing to work at a local law firm in the new fashion of “legal consultant”, when our local firms employ attorneys who live elsewhere in the world and those attorneys work under the law firm’s name.
Clause 30 prescribes that a judge may admit a person as an attorney in Cayman in accordance with the Law, but may not do so unless the judge is satisfied that the attorney has the “prescribed personal qualifications, the additional personal qualifications, the professional qualifications, and any additional post foreign qualifications experience”
This clause can easily lead a judge to decide that only attorneys with experience practicing off-island are fit to be admitted, and the law gives the power to decline if such experience is lacking – to gain the said experience it would be necessary for a Caymanian attorney to be sent to a local law firm’s off-island office or acquire a job in a firm overseas, etc. Clause 30 does not say “or”, it says “and”, and therefore can be taken to mean that all of the qualifying details should be considered together.
Clause 54 states that in order for a company to be recognised as a law company in Cayman, that company must apply to the council (the same council made up of eight members, six of which can be from major law firms that is to be established to oversee the association, which will be constructed of ALL attorney-at-law).
Remember, this is the same council made up of private-sector attorneys, five of which must be Caymanian under the law – a quorum of the meeting of the said council can be one half (or four) members of the council. A little conflicting I think.
In brief, the Legal Practitioner’s Bill gives the following powers to this 8-member council:
- The power to accept or refuse to recognize a company as a law company;
- The power to prescribe rules and regulations over all attorneys practicing Cayman law;
- The power to prescribe fees payable to the Association for a company to be recognized as a law company in Cayman;
- The power to allow a local law firm to have attorneys practicing law out of the jurisdiction;
In addition, Clause 68 gives the criteria of which the council must weigh its decision as to whether to approve a local law firm to allow its attorneys to practice law in another jurisdiction and stipulates that a law firm cannot do so if the number of non-Caymanian employees working within each of the law firm’s offices (on and off island) “(A)” exceeds the total number of Caymanian attorneys employed by the firm “(B)” + ALL attorneys employed by the firm within Cayman “(C)” + all trainee attorneys employed by the firm in all offices “(D)”; or as the bill outlines it, “if A exceeds B plus C plus D…”
Considering the current structure of most multi-jurisdictional law firms in Cayman and that their primary base is usually within the Cayman Islands, it is therefore safe to assume that the highest number of their attorneys indeed work in Cayman.
There will be very rare incidences (if any) of A ever exceeding B + C + D because C considers ALL attorneys employed by the firm in question who work within the Cayman Islands, and therefore it is safe to say that all law companies approved by the council to practice law in Cayman are also or will also be allowed to have attorneys practicing in another jurisdiction. AND, in instances where A may perhaps exceed B + C + D – the council has been given discretionary power by this bill to approve as it sees fit.
The bill is a 126-page document and I have only touched on the first several pages that outline the new additions to the overall Legal Practitioners Law.
My primary concern is whether or not it is right to have an association of this sort formed and given such immense power over a vital industry, the same industry that Cayman banks its bad name upon due to our constant back-bending to accommodate the profit-desires of the private sector firms. It is our government and our people that stand to suffer from any legislation written that does not first and foremost uphold the principles of good justice for ALL involved.
See also: The real commotion behind that Motion
Category: Business Viewpoint