Bermuda Bar Act 1974

[13 December 1974]

[preamble and words of enactment omitted]

PART I

Interpretation

1 In this Act, unless the context otherwise requires —

"accountant" means a person who is a member of an accounting institution recognized by the Bar Council;

"admitted" in relation to a barrister means admitted and enrolled as a barrister and attorney under section 51 or 53 of the Supreme Court Act 1905 [title 8 item 1];

"Association" means the Bermuda Bar Association established under section 2;

"bank" has the meaning assigned to it in the Bank Act 1969 [title 17 item 20];

"Bar" means the Bar of Bermuda;

"Bar Council" or "Council" means the Bar Council established under section 3;

"barrister" means a barrister and attorney admitted as such;

"the Committee" means the Professional Conduct Com-mittee established by section 18;

"Court" means the Supreme Court;

"disciplinary tribunal" means a tribunal appointed under section 19;

"disqualified person" means either—

(a) a person whose name is on the Roll but who at the time in question is suspended from practice; or

(b) a person whose name was once on the Roll but at the time in question has been struck off the Roll;

"elected member" has the meaning given in section 3(1);

"practising certificate" means a certificate issued by the Council under section 10, and "valid practising certificate" means a practising certificate which is in force;

"prescribed" means prescribed by rules under section 9;

"President" means the President of the Association;

"Register of Associates" means the register provided for in section 14(4);

"registered associate" means a person whose name appears in the Register of Associates;

"Roll" means the Roll maintained in accordance with section 54 of the Supreme Court Act 1905 [title 8 item 1];

"rules" means rules made under section 9;

"Secretary" means the Secretary of the Association;

"special practising certificate" means a certificate issued by the Council under section 12, and "valid special practising certifi cate" means a special practising certificate which is in force;

"specially admitted" means admitted and enrolled under section 51(3) of the Supreme Court Act 1905 [title 8 item 1];

"unqualified person" means a person whose name is not, and has never been, on the Roll, but does not include either —

(a) a registered associate as respects the performance by him of any function falling within his competence under this Act as such an associate; or

(b) any person within the benefit of section 32;

"Vice-President" means the Vice-President of the Association.

[Section 1 amended by 1997 : 26 effective 15 August 1997]

PART II

THE BERMUDA BAR ASSOCIATION AND BAR COUNCIL

Bermuda Bar Association

2 (1) There shall be established an association under the name of "The Bermuda Bar Association", which shall be a body corporate with the exclusive right to use that name and with power to sue and liability to be sued in its corporate capacity by that name in all courts and with power to have and use a common seal and to renew or vary the same at plea sure.

(2) All barristers other than those specially admitted shall for so long as they remain admitted form and be members of the Associa tion:

(2A) Subject to sections 3(1), 5, and to sections 14 to 16 of this Act which define the rights, privileges and functions of registered associates, all registered associates shall for so long as they remain registered be members of the Bermuda Bar Association.

Provided that any barrister who is appointed to hold, or to act for a period exceeding three months in, the office of Judge, Registrar or magistrate shall for the duration of such appointment be deemed not to be a member of the Association.

(3) The liability of each barrister or registered associate for the debts or other legal obligations of the Association shall be limited to the amount (if any) for the time being owed by him to the Association for any fees prescribed by rules made under section 9 or otherwise except with respect to a debt or legal obligation of the Association for which he shall have expressly agreed to become responsible either alone or in conjunction with others; but all the property and assets of the Association shall be liable for its debts and obligations.

[Section 2 amended by 1997 : 26 effective 15 August 1997]

Bar Council

3 (1) The Bar Council shall consist of —

(a) such number of barristers, not being less than five as may be specified in the rules, elected in accordance with section 5, hereinafter referred to as "elected members"; and

(b) the Attorney-General, ex officio:

Provided that the Bar Council may act notwithstanding any va cancy in the number of elected members or in the office of Attorney-Gen eral.

(2) An elected member shall vacate office immediately before the election of members of the Council for the year next following the date of his election takes place in accordance with section 5.

(3) An elected member shall be eligible for re-election to the Council.

[Section 3 amended by 1997 : 26 effective 15 August 1997]

General responsibilities of Bar Council

4 Without prejudice to any other powers conferred or duties im posed by this or any other Act, the Bar Council shall be responsible for the management of the affairs of the Association and for —

(a) the maintenance of the honour and independence of the Bar and the defence of the Bar in its relations with the executive and the judiciary;

(b) the encouragement of legal education, and the promo tion of the study of jurisprudence;

(d) the support of the public right of access to the courts and of the right of representation by members of the Bar before courts and tribunals;

(e) the encouragement of improvements in the administra tion of justice and procedure including arrangements for legal advice and aid and for a system of law reporting;

(f) the encouragement and support of law reform;

(g) the furtherance of good relations between the Bar and lawyers of other countries;

(h) the issuance, revocation and suspension of practising certificates;

(i) such other matters of professional concern to barristers as the Association may determine.

Annual meeting of Association

5 (1) The Bar Council shall in each and every year summon a meeting of the Association to be held in accordance with the rules for the purposes specified in subsection (2).

(2) At every meeting of the Association summoned in accor dance with subsection (1) the following business shall be conducted—

(a) to receive a report from the President of the proceedings of the Bar Council during the previous year;

(b) to consider the audited financial statements of the Asso ciations;

(d) to appoint an auditor of the books of the Association for the ensuing year; and

(e) to transact any other business which might properly be brought before the meeting.

(3) At any meeting held under this section—

(a) twenty-five members shall constitute a quorum:

Provided that if within thirty minutes of the time notified for commencement of the meeting twenty-five members are not present, the person presiding shall adjourn the meeting for one week and if, when the meeting is con vened after such adjournment, there are not present twenty-five members within that period, the members then present shall constitute a quorum;

(b) the elected members of the Council shall be elected by ballot in such manner as the rules may determine.

(4) As soon as the elected members of the Council have been elected in accordance with subsection (3), the meeting shall proceed to elect one of those members to be President of the Association, another to be Vice-President, and a third to be Secretary:

Provided that the Association shall elect as President a barrister in active private practice in Bermuda.

(5) In the event of a casual vacancy occurring in the office of President, Vice-President or Secretary during any year the Bar Council shall have power to appoint another barrister to fill up the vacancy, and in the event of a casual vacancy occurring among the other elected members of the Council it shall have power to appoint some other mem ber of the Association to fill up the vacancy.

(6) If, after a member of the Council has disqualified himself for considering a matter, the number of members remaining is insufficient to make up a quorum of the Council for the consideration of that matter, the President shall have power to appoint another barrister in his place to be a temporary member of the Council for the purpose of making up the quorum for the consideration of that matter.

[Section 5 amended by 1997 : 26 effective 15 August 1997]

Special meetings

6 (1) A special meeting of the Association shall be held upon the requisition of the President or of any two members of the Council or of any ten members of the Association to consider any matter specified in such requisition.

(2) Every such requisition shall be made in writing and shall be addressed to the Secretary.

Presiding at meetings

7 The President shall be ex officio the chairman and the Vice-President shall be ex officio the vice-chairman of the Bar Council and at every meeting of the Council or the Association the President or in his absence the Vice-President shall preside:

Provided that if both the President and the Vice-President are absent from a meeting of the Association or of the Council, such other member as the members present shall select from their number shall preside.

Quorum and procedure of Council

8 (1) The quorum for any meeting of the Council shall be one half of the number of the members of the Council for the time being.

(2) Subject to this Act and of the rules the Bar Council may make its own rules of procedure.

Council may make rules

9 (1) The Bar Council may make rules—

(a) regulating in respect of any matter the professional practice, conduct and etiquette of barristers or registered associates;

(b) in relation to the keeping by barristers of accounts and in particular providing for—

(i) the opening and keeping by barristers of ac counts at banks of clients' money;

(ii) the keeping by barristers of accounts containing particulars and information as to moneys re ceived, held or paid both for or on account of their clients;

(iii) the Council to take such action as may be nec essary to enable them to ascertain whether or not such rules are being complied with;

(iv) the manner in which barristers shall deal with money held by them in a fiduciary capacity and the books of accounts to be kept in respect thereof and for the auditing of such accounts;

(c) providing for the conduct of inquiries, and investigations, or hearings respectively by the Professional Conduct Committee or a disciplinary tribunal under section 18A or 19A;

(cc) regulating the rights and duties of barristers and pupil-barristers in connection with the training of the latter, whether for the purpose of section 51(1) of the Supreme Court Act 1905 [title 8 item 1] or otherwise;

(d) enabling the Council to exempt any person from compli ance with any such rules and to impose and enforce conditions upon which such exemption may be granted in any particular case;

(e) fixing the fees payable by members to the Association;

(f) prescribing any matter which under the Act is required or permitted to be prescribed by rules; and

(g) generally for the better carrying out by the Council of its functions under this Act and for the direction, govern ment and control of the Association.

(2) Every rule made by the Council under this section shall be subject to confirmation by the Chief Justice.

(3) Section 6 of the Statutory Instruments Act 1977 shall not apply to rules made under this section.

[section 9 amended by 1992:54 effective 17 July 1992; and by 1997 : 26 effective 15 August 1997]

PART III

PRACTISING CERTIFICATES

Practising certificate

10 (1) The Council, on application in writing by a barrister in the month of November in any year in such form as the Council may deter mine and on payment of such fee as may be prescribed by rules and upon being satisfied that the person to whom the application relates is qualified to practise as a barrister shall, in accordance with this Part, is sue to the applicant a practising certificate as a barrister for the period of one calendar year from the 1st January next following the date of the application.

(2) A practising certificate issued under subsection (1) shall be in such form as the Council may from time to time determine.

(3) A barrister shall be entitled to a practising certificate if —

(a) he is admitted in accordance with section 51 of the Supreme Court Act 1905 [title 8 item 1] and has not been suspended under section 57 of that Act or section 22 of this Act or his name has not been removed from or struck off the Roll;

(b) (i) he possesses Bermudian status within the meaning of the Bermuda Immigration and Protection Act 1956 [title 5 item16];

(ii) he possesses a current and valid permit issued under that Act entitling him to engage in gainful occupation in Bermuda as a barrister; or

(iii) he possesses spouse employment rights in accordance with the provisions of section 60 of that Act;

(c) he is not in default in the payment of the fees prescribed by the Bermuda Bar Association (Organization) Rules 1975 [title 30 item 3(a)];

(d) he or his firm of barristers is not in default of the re quirement of the Barristers (Accounts and Records) Rules 1976 [title 30 item 3(b)] to file an accountant's re port; and

(e) he is not an undischarged bankrupt.

(4) Notwithstanding subsection (1), the Council may permit an application for a practising certificate to be made under this subsection in a month other than November and upon such application may issue to the applicant a practising certificate for any period not exceeding one calendar year and ending on the 31st December in the year in which it is issued.

(5) The Bar Council shall cause to be published in the Gazette—

(a) in the month of February in every year, an alphabetical list of persons who have at the 1st January in that year obtained a practising certificate;

(b) as soon as practicable after he obtains a practising cer tificate, the name of any person obtaining a practising certificate after the 1st January in any year.

(6) A copy of the Gazette containing the list referred to in sub section (5)(a) or the name of any person published pursuant to subsec tion (5)(b) shall be prima facie evidence in any court of the holding of a valid practising certificate by any person mentioned in subsection (5)(a) or (b).

[Section 10 amended by 1997 : 26 effective 15 August 1997]

Practising certificate invalidated by removal from Roll, suspension and on bankruptcy

11 (1) If the name of a barrister is removed from the Roll any practising certificate issued to him shall cease to be valid.

(2) During the period of suspension of a barrister from practice, no practising certificate shall be issued to him and any practising certifi cate issued to him prior to such suspension shall cease to be valid for the period of that suspension.

(3) If a barrister is adjudicated a bankrupt any practising cer tificate issued to him shall cease to be valid for the period during which he remains an undischarged bankrupt.

Special practising certificates

12 (1) Notwithstanding section 10, the Council, on application in writing by a barrister specially admitted in such form as the Council may determine and on payment of such fee as may be prescribed by rules, shall issue to the applicant a special practising certificate for the partic ular case or series of cases in respect of which the applicant is specially admitted if the Council is satisfied that the barrister possesses a current and valid permit issued under the Bermuda Immigration and Protection Act 1956 [title 5 item 16] entitling him to engage in gainful occupation in Bermuda as a barrister.

(2) A special practising certificate issued under subsection (1) shall be in such form as the Council may from time to time determine.

Appeals

13 (1) Any barrister aggrieved by a decision of the Council refusing an application made under this Part may appeal to the Supreme Court against that decision within one month of being notified of it.

(2) Upon hearing any appeal under subsection (1), the Supreme Court may make such order, including an order for costs, as it thinks just.

(3) The practice and procedure to be followed in relation to ap plications and appeals under this section shall be as prescribed by rules of court.

PART IV

REGISTRATION OF ASSOCIATES

14 (1) Subject to this Act, any person registered in accordance with this section, in this Act referred to as a "registered associate", may act as the agent of the barrister by whom he is for the time being em ployed in the drawing and preparation of such instruments and the per-formance of such business and functions as are specified in section 15.

(2) A person may not be registered as an associate under this section unless he is qualified in accordance with subsection (5) and pro duces to the Registrar the statement by the barrister employing him re quired by subsection (3).

(3) A person shall be registered as an associate under this sec tion upon application being made to the Registrar by the barrister by whom he is employed, accompanied by a certificate from the competent authority evidencing the qualifications of such person and a statement by such barrister that to the best of his knowledge and belief such per son is of good character.

(4) Upon receipt of the application the Registrar shall enter the name of the barrister making the application and the name and qualifi cations of the person in respect of whom the application is made in a register to be known as the Register of Associates.

(5) A person shall be qualified for registration as an associate under this section if he is qualified in the manner set out in section 51(1)(a) of the Supreme Court Act 1905 [title 8 item 1] or satisfies the Registrar that he is entitled to practise in a court of the nature described in section 51(1)(a) of the Supreme Court Act 1905 and, under any statu tory provision for the time being in force regulating the right to engage in gainful occupation or to be employed in Bermuda, may lawfully be em ployed to perform the functions allowed to a registered associate under this Act.

(6) Any person who procures the registration of himself or of any other person as a registered associate by any false or misleading certificate or statement commits an offence:

Punishment on summary conviction: a fine of $1,000

Permitted functions of registered associates

15 Notwithstanding anything to the contrary in this Act, a registered associate shall be entitled to act as the agent for the barrister by whom he is employed in the drawing and preparation of instruments relating either to real or personal property, or on which to found or oppose a grant of probate or letters of administration or a resealing thereof, in the taking of instructions from clients, in the giving of instructions to coun sel, in the preparation of such documents relating to legal proceedings as are to be prepared in the chambers of the barrister, and generally in the conduct of such of the business of the barrister as is normally conducted in the chambers of a barrister and attorney.

Removal of name from Register of Associates

16 The Registrar shall remove the name of any registered associate from the Registrar of Associates —

(a) on receipt of a certificate from the barrister whose name is for the time being entered in the Register in relation to such associate pursuant to section 14(4) that such per son is no longer in his employ; or

(b) upon the application of the registered associate; or

(c) upon the taking effect of an order to that effect of a dis ciplinary tribunal under section 19A in relation to the registered associate; or

(d) upon the registered associate becoming admitted as a barrister.

[Section 16 amended by 1997 : 26 effective 15 August 1997]

PART V

DISCIPLINE

Improper conduct

17 (1) For the purposes of this Act, it shall be improper conduct if a barrister—

(a) makes a statement which to his knowledge is false in any material particular for the purpose of procuring his admission to practise law or the admission of any other person so to do;

(b) employs any disqualified or unqualified person, or permits any disqualified or unqualified person in his employ to engage, in any business, matter or thing in contravention of this Act;

(d) is otherwise guilty of conduct unbefitting a barrister.

(2) For the purposes of this Act, it shall be improper conduct if a registered associate—

(a) for the purpose of procuring his registration as such is found to have produced a certificate which is false in any material particular, or does not relate to himself, or to have made any statement to his employer relating to such qualifications for such registration which is false in any material particular; or

(b) in any business, matter or thing in which he is entitled to engage on behalf of his employer under this Act, acts in any manner which would, were he a barrister, constitute improper conduct under subsection (1)(c).

Professional Conduct Committee

18 (1) There shall be established a standing committee of the Bermuda Bar Association under the name of the "Professional Conduct Committee" which shall have the powers given to it under this Act.

(2) The Professional Conduct Committee shall consist of—

(a) three members of the Bar Council; and

(b) four other members selected by the Council from among the members of the Bar Association.

(3) The members of the Committee shall be appointed annually by the Bar Council to hold office for a period not exceeding one year commencing on the date of such appointment.

(4) A person appointed as a member of the Committee under subsection (3) may be reappointed thereto, so however, that the time of such reappointment shall coincide so far as is practicable with the election of members to the Bar Council.

(5) The Committee shall elect one of its members to be the Chairman thereof to chair Committee meetings and perform any other functions assigned to him in accordance with this Act and the Rules.

(6) Where it is appropriate so to do, the Committee may designate one of its members to be a committee representative to perform, on behalf of the Committee, the functions assigned to him in accordance with the Rules.

(7) If by reason of illness or absence or for any other reason the Chairman of the Committee or a committee representative is unable to act at any time, the Chairman of the Committee shall nominate another of its members to act in his place.

(8) The quorum for any meeting of the Committee shall be three members, so however, that where the Committee is unable to form a quorum, the Chairman thereof shall have power to appoint a member or members of the Bar Association to serve on the Committee temporarily to satisfy quorum requirements.

(9) The practice and procedure to be followed by the Committee shall be as prescribed by Rules and, subject to this Act and those Rules, the Committee may make its own rules of procedure.

General powers of Professional Conduct Committee

18A (1) The powers and functions of the Committee shall be to—

(a) conduct inquiries into and investigations of complaints of improper conduct made against a barrister or registered associate in accordance with the Rules, to determine whether a prima facie case of improper conduct has been made out against the person complained against;

(b) take such measures prescribed by the Rules after such inquiry or investigation, or both such inquiry and investigation, if no prima facie case of improper conduct has been made out against a person complained against;

(c) take such informal or formal measures in accordance with the Rules after investigating such a complaint, where the Committee determines that a prima facie case has been made out against a person complained against;

(d) make any necessary administrative arrange-ments, in accordance with the Rules, for the presentation of a case before a disciplinary tribunal, where formal measures are taken by the Committee in respect of a complaint;

(e) make an order that a trust fund or funds shall, until a disciplinary tribunal determines other-wise, be operated by an accountant or a bank if the complaint of improper conduct contains an allegation of misuse of trust funds;

(f) authorize a committee representative to make arrangements for counsel, and any assistant counsel appointed by him, to be remunerated in accordance with the Rules for work done on behalf of the Committee;

(g) make a ruling in respect of what constitutes a matter of improper conduct where the Committee considers it appropriate so to do or when a barrister asks the Committee so to do, and such a ruling may involve a question of conflict of interest; and

(h) make recommendations on matters of improper conduct to the Bar Council as it may think appropriate.

Disciplinary tribunals

19 (1) Where the Committee determines that a prima facie case of improper conduct has been made out and formal measures are appropriate, it shall, after causing charges to be formulated against that person, refer the complaint to a disciplinary tribunal appointed by the Chief Justice under subsection (2).

(2) When invited so to do by the Committee, the Chief Justice shall appoint a disciplinary tribunal to sit to determine a complaint of improper conduct against a barrister or registered associate in accordance with the Rules.

(3) A disciplinary tribunal shall consist of a Chairman, who shall be a Judge of the Supreme Court selected for appointment by the Chief Justice to preside over disciplinary hearings, and two other members recommended for appointment by the Bar Council from among the members of the Bar Association:

Provided that, where the Bar Council is the complainant, the three members of a disciplinary tribunal shall be selected for appointment by the Chief Justice.

(4) The members of a disciplinary tribunal shall, so far as is possible, be persons of professional standing comparable or senior to that of the person complained against.

(5) The standard of proof required in proceedings before a disciplinary tribunal shall be the same as that required in criminal proceedings.

(6) For the purpose of conducting a hearing, a disciplinary tribunal shall have all the powers of a court of summary jurisdiction in relation to the summoning of witnesses, their examination on oath or otherwise and to compelling the production of any document or thing relevant to the subject matter of the proceedings.

(7) A decision of a disciplinary tribunal may be reached by a majority of the members of that tribunal.

(8) The practice and procedure to be followed in relation to the proceedings of a disciplinary tribunal shall be as prescribed by the Rules and, subject to this Act and those Rules, a disciplinary tribunal may make its own rules of procedure.

Powers of disciplinary tribunals

19A (1) The powers and functions of disciplinary tribunal shall be to—

(a) conduct a preliminary hearing in accordance with the Rules, for the purpose of giving directions in relation to the conduct of a hearing in respect of a complaint of improper conduct;

(b) conduct a hearing in accordance with the Rules for the purpose of determining whether or not a complaint of improper conduct has been made out against a person complained against and, thereafter, make such finding, sentence or order in accordance with the Rules as the tribunal deems appropriate in the circumstances of the case before it;

(c) confirm or, on the application of the person complained against, revoke an order made by the Committee under paragraph (e) of subsection (1) of section 18A to appoint an accountant or a bank to operate a trust fund or funds temporarily where the complaint of improper conduct contains an allegation of misuse of trust funds;

(d) make an order for costs against either party to disciplinary proceedings adjudicated before it in accordance with the Rules, and this may include an order for payment of the—

(i) professional charges of counsel, and his assistant if any, who presents a case before the tribunal in accordance with this Act and the Rules;

(ii) professional charges of a bank or accountant appointed by an order of the Committee or a disciplinary tribunal respectively under section 18A(1)(e) or 19A(1)(c) of this Act respectively;

(iii) administrative costs and expenses incurred by the Committee in the performance of its functions under this Act or Rules made hereunder.

(2) An order of the Committee or a disciplinary tribunal in pursuance of section 18A(1)(e) or 19A(1)(c) respectively may, according to the circumstances of each particular case considered by the Committee or a disciplinary tribunal, make provision for any resulting costs to be met by the person complained against or the Bar Association.

Appointment of clerk to disciplinary tribunal

20 (1) The Chief Justice shall, on the recommendation of the Chairman of a disciplinary tribunal, appoint a person to act as clerk to that tribunal and assist the tribunal in the performance of its functions under this Act.

(2) The clerk shall perform such functions as are assigned to him in accordance with this Act and the Rules, and any other functions that a Chairman of a disciplinary tribunal shall direct him to perform in relation to a complaint before it.

Complaints of improper conduct

21 (1) Subject to subsection (3), a complaint that a barrister or registered associate has been guilty of improper conduct may be made to the Bar Council in writing by the complainant.

(2) As soon as may be practicable after receipt of a complaint under subsection (1), the Bar Council shall refer that complaint to the Committee.

(3) Notwithstanding subsection (1), where the Bar Council is of the opinion that the conduct of a barrister or registered associate might constitute improper conduct, and no such complaint has been made by any person, it may, on its own motion, refer evidence of the conduct of that barrister or registered associate to the Committee.

(4) As soon as may be practicable after receipt of a complaint from the Bar Council, the Committee shall inquire into, investigate and make a determination in respect of, the complaint in accordance with the Rules.

(5) After making such determination, the Committee shall take such action prescribed under section 18A of this Act and the Rules as it thinks fit:

Provided that, a determination by the Committee under paragraph (b) of subsection (1) of section 18A to dismiss a complaint in accordance with the Rules shall be final and not subject to appeal.

Convening Notices

22 (1) The Chief Justice shall, where the Committee determines that formal treatment of a complaint is necessary and disciplinary charges in respect of a person complained against are forwarded to him, issue and cause to be served upon that person a Notice, in this Act and the Rules made hereunder referred to as a "Convening Notice", informing the person about the matters and rights set out in the Rules.

(2) Upon the appointment of a disciplinary tribunal, the Chief Justice shall send a copy of the Convening Notice to the Committee to inform the Committee of the composition of the tribunal that shall determine the charge or charges formulated against a person complained against.

(3) Upon receipt of a copy of the Convening Notice, the Committee shall forward to the disciplinary tribunal a copy of the charge and any documentary evidence to enable the tribunal to sit to hear and determine whether the complaint constitutes improper conduct by a person complained against.

Appeal to the Court of Appeal

23 (1) A barrister or a registered associate aggrieved by a finding, sentence or order of a disciplinary tribunal may appeal to the Court of Appeal against such finding, sentence or order within twenty-one days of being notified of it.

(2) Section 8 of the Court of Appeal Act 1964 [title 8 item 4] shall apply mutatis mutandis in relation to an appeal under subsection (1) as it applies in relation to a judgment or order of the Supreme Court in a civil cause or matter.

(3) Section 9 of that Act shall be deemed to extend to the making of rules under that section to regulate the practice and procedure on an appeal under this section.

(4) A hearing before the Court of Appeal shall be in camera unless the barrister or registered associate who files the appeal requests that the hearing shall be in open court.

Restoration to Roll of name of barrister struck off

24 (1) The Bar Council may, at any time, if it thinks fit, upon application being made by a barrister who has been disqualified from practice or whose name has been struck off the Roll, recommend to the Supreme Court that that barrister's name shall be restored to the Roll or, as the case may require, that his disqualification from practice shall be terminated, and shall forthwith give notice of any such recommendation to the Registrar.

(2) Upon receipt of notice of a recommendation made by the Bar Council under subsection (1) in relation to a barrister, the Registrar shall forthwith cause that application and recommendation to be placed before the Supreme Court and upon receipt of an application and subject to such conditions as the Court considers appropriate, the Court may—

(a) exercise any powers vested in it by section 51 of the Supreme Court Act 1905 [title 8 item 1] to order the restoration to the Roll of that barrister's name; or as the case may require,

(b) order the termination, with effect from a date specified in the order, of the barrister's suspension from practice.

(3) Any decision of the Bar Council under subsection (1) in relation to the making of a recommendation under that subsection or a refusal so to do, and any decision or order of the Supreme Court under subsection (2) in relation to any such recommendation, shall be final.

(4) Where the Supreme Court orders under subsection (2) the restoration of a barrister's name to the Roll or the termination of his suspension from practice, the Registrar shall cause a note of the effect of the order to be entered in the Roll and a notice thereof to be published in the Gazette.

Restoration to Register of name removed

24A (1) The Bar Council may at any time, if it thinks fit, upon application being made by a registered associate who has been suspended from practice or whose name has been removed from the Register of Associates, recommend to the Registrar that, subject to such conditions as the Bar Council considers appropriate, that registered associate's name shall be restored to the Register of Associates or, as the case may require, that his suspension from practice shall be terminated.

(2) Upon receipt of notice of a recommendation made by the Bar Council under subsection (1) in relation to a registered associate, the Registrar may—

(a) exercise the power vested in him by section 14 of this Act to enter the registered associate's name in the Register of Associates; or as the case may require,

(b) terminate that registered associate's suspen-sion from practice.

(3) A decision of the Registrar under subsection (2) shall be final.

(4) The Registrar shall cause a notice of the entry in the Register of Associates to be published in the Gazette.

Registrar may publish charge, finding and sentence

24B (1) Subject to the provisions of this section, a charge, finding or sentence of a disciplinary tribunal may be published in the Gazette.

(2) Where, at the end of disciplinary proceedings, a disciplinary tribunal finds that a complaint does not constitute improper conduct by a person complained against, the Registrar shall publish in the Gazette a notice of the complaint, charge and the finding, if the person complained against requests such publication.

(3) Where the sentence is one of disbarment, suspension or a fine and a period of six weeks from the date of the decision of the disciplinary tribunal has expired, the Registrar shall—

(a) cause a note of any charge proved against the respondent and the sentence imposed upon him to be entered in the Roll against the name of the barrister, or as the case may be in the Register of Associates against the name of the registered associate; and

(b) file the order made in respect of the sentence.

(4) After filing such an order under paragraph (3), the Registrar shall cause a notice stating any charge proved and the sentence imposed against the respondent, to be published in the Gazette.

(5) Where the sentence is one other than disbarment, suspension or a fine and the respondent has not appealed against his sentence to the Court of Appeal, the Registrar shall—

(a) cause a note of the effect of the order of the disciplinary tribunal to be entered in the Roll against the name of the barrister, or in the Register of Associates against the name of the registered associate to whom the order relates; and

(b) if the tribunal so recommends and the respondent so requests, cause a notice stating the effect of the order to be published in the Gazette.

(6) Where a respondent has appealed to the Court of Appeal against the finding or sentence or both such finding and sentence in respect of the complaint made against him, such finding or sentence or both shall not be published until the appeal is withdrawn, struck out or determined by the Court of Appeal.

Confidentiality

25 Subject to section 24B of this Act, every disciplinary proceeding under this Part of the Act shall be treated as confidential by every person having access thereto.

[Part V repealed and replaced by 1997 : 26 effective 15 August 1997]

PART VI

OFFENCES AND SUPPLEMENTARY

Unqualified person not to act as barrister and attorney

26 (1) Save where expressly permitted by this or any other Act no disqualified or unqualified person shall act as a barrister and attorney, or as such sue out any writ or process, or as such commence, carry on or defend any action, suit or other proceeding in any court, or act as a barrister in any case civil or criminal to be heard or determined in any court.

(1A) Notwithstanding subsection (1), a person who has completed the first six months of the period of practical training referred to in section 51(1)(a)(ii) of the Supreme Court Act 1905 [title 8 item 1] shall for so long as that practical training continues have full rights of audience in any court of summary jurisdiction.

(2) Any person contravening this section commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $1,000 or both such imprisonment and fine.

[section 26 amended by 1992:54 effective 17 July 1992]

Pretending to be barrister and attorney

27 Any disqualified or unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognized by law as qualified to act as a barrister and attorney in Bermuda commits an offence:

Punishment on summary conviction: a fine of $1,000.

Unqualified person not to prepare certain instruments

28 (1) Any unqualified person who directly or indirectly draws or prepares any Bill for a private Act of the Legislature, any memorandum of association of a company or any instrument relating to real or per sonal property or to any legal proceedings, unless he proves that the act was not done for or in expectation of any fee, gain or reward, commits an offence:

Punishment on summary conviction: a fine of $1,000.

Provided that—

(a) this subsection shall not apply to—

(i) a public officer or the employee of a company or firm preparing or drawing any instrument for his employer in the course of his employment; or

(ii) a person merely engrossing any instrument in the course of his employment; or

(iii) any professional accountant, as respects the drawing or preparing, in the course of his prac tice as such an accountant, of memoranda of association of any company; and

(b) nothing in this subsection shall be construed as pre venting a person in regular employment of a barrister from preparing in the course of such employment and under the supervision of the barrister and attorney any instrument which is required by the barrister and for which the barrister assumes responsibility.

(2) In this section "instrument" does not include—

(a) any will or other testamentary instrument; or

(b) an agreement under hand only; or

(d) a transfer of stock containing no trust or limitation.

Practising certificates; offences

29 (1) Subject to subsection (3), a person shall not practise as a barrister unless he is the holder of a valid practising certificate or a valid special practising certificate, as the case may be.

(2) A person who practises as a barrister in contravention of subsection (1) commits an offence:

Punishment on summary conviction : imprisonment for 2 years or a fine of $10,000 or both such imprisonment and fine, and further is not enti tled to maintain any action for the recovery of any fee on account of or in relation to any legal business done by him in the course of such practice.

(3) This section shall not apply to any barrister who is a mag istrate or holds an office in the Attorney General's Chambers.

Disqualified persons

30 (1) Except as permitted by subsection (2), a disqualified person shall not engage, or be employed, in any legal practice.

(2) The Bar Council may at any time, if it thinks fit, upon ap plication being made to it by a disqualified person who is suspended from practice, grant a written permission under this subsection in re spect of that person for such period and subject to such conditions as the Council thinks fit.

(3) The Bar Council may at any time revoke a permission granted by the Council under this section.

(4) The Bar Council's decision on any application under sub section (2), or to revoke a permission in exercise of the Council's powers under subsection (3), shall be final.

(5) The Bar Council shall notify the Registrar in writing of the terms of any permission granted under this section and of any revocation of such a permission, for the information of the Supreme Court.

(6) If—

(a) any disqualified person acts in contravention of subsec tion (1); or

(b) any disqualified person in respect of whom a permission under this section has been granted acts in contraven tion of any conditions subject to which the permission was granted; or

(c) any barrister employs a disqualified person otherwise than under and in conformity with a permission under this section,

he commits an offence:

Punishment on summary conviction: a fine of $1,000 and, in the case of a continuing offence, a fine of $100 for each day during which the of fence continues.

(7) In subsection (1) "legal practice" means practice as a bar rister or work belonging to, or connected with, such a practice.

No costs recoverable where unqualified person acts

31 No costs in respect of anything done by any disqualified or un qualified person acting as a barrister and attorney shall be recoverable in any action, suit or matter by any person whatsoever.

Saving for person authorized to conduct proceedings

32 Nothing in this Act shall derogate from any enactment empow ering an unqualified person to conduct, defend or otherwise act in rela tion to any legal proceedings.

Transitional

33 [omitted]

Repeals and amendments

34 [omitted]

[Amended by
1976 : 54
1977 : 35
1984 : 32
1984 : 55
1992 : 54
1997 : 26]

Bermuda Consolidated Legislation

Bermuda Bar Act 1974