A Barrister v Bermuda Bar Council

• Jurisdiction: Bermuda
• Judge: Bell, JA
• Judgment Date: 20 March 2015
• Neutral Citation: BM 2015 CA 7,[2015] CA Bda 16 Civ
• Docket Number: CIVIL APPEAL No 15 of 2014
• Court: Court of Appeal (Bermuda)
• Date: 20 March 2015

Between:

A Barrister

Appellant

and

Bermuda Bar Council

Respondent

[2015] CA (Bda) 16 Civ

Before:

Baker, President

Kay, JA

Bell, JA

CIVIL APPEAL No 15 of 2014

The Court of Appeal for Bermuda

Appearances:

Appellant in Person

Mr. Saul Froomkin Q.C., Isis Law Limited for the Respondent

REASONS

Bell, JA

1 The Appellant in this case was the subject of a complaint filed with the Bermuda Bar Association on 7 April 2011, relating to a conveyancing transaction, which led to two counts of breach of the Barristers' Code of Professional Conduct 1981 (‘the Code’) being filed on 2 March 2012.

2 Disciplinary hearings took place on 21 and 22 October 2013 before a tribunal comprising the Honourable Chief Justice, Mr Wendell Hollis, a senior member of the bar, and Ms Michelle Stone, an experienced conveyancing practitioner (‘the Tribunal’).

3 On 22 April 2014, the Tribunal dismissed Count 1 and found Count 2 to have been proved. That charge was that the Appellant had failed to be competent, diligent and efficient in his professional activities, contrary to rule 6(iv) of the Code.

4 The Tribunal held at the end of paragraph 19 of its ruling that ‘in the most unconvincing part of his oral evidence the (Appellant) claimed that he saw no material difference between the property described in the sale and purchase agreement, and the legal interest subsequently conveyed. The fallacy of this position can best be illustrated by comparing the crucial elements of the two descriptions:’ and the Tribunal then set out the contents of the sale and purchase agreement, referring to ‘all that lot of land’, and those of the conveyance, referring to ‘all that one half interest in the lot of land’. The Tribunal continued to declare itself satisfied beyond reasonable doubt that on this broad basis the Appellant was guilty of contravening rule 6(iv) by;

• (a) failing to take adequate steps to ensure that the Complainant knew that she was acquiring an extremely unusual legal interest by purchasing not an apartment but a one half interest in a house consisting of two apartments, one of which she would be able to occupy; and

• (b) failing to appreciate adequately or at all the basic duties of a conveyancing attorney as illustrated by, inter alia

  • (i) the misconceived insistence that at all material times the (Appellant's) only “client” was the vendor, and

  • (ii) the incoherence of the closing statement and the admitted basic error in over-charging the Complainant.

5 The Tribunal considered sentence on 11 June 2014, and ordered that the Appellant be suspended from the practice of conveyancing work for two years pursuant to rule 20(2)(b) as read with rule 19(2) of the Bar Disciplinary Tribunal Rules 1997 (‘the Rules’), ordered that the Appellant pay the sum of $9266.25 to the Complainant by the way of repayment of all legal fees received by him from her, pursuant to rule 20(2)(d) of the Rules, and ordered that the Appellant should pay to the Bermuda Bar Association the sum of $2,500 within six months after the expiration of his suspension, by way of contribution to the Professional Conduct Committee's costs pursuant to Rule 23(1) of the Rules.

6 The Appellant filed Notice of Appeal dated 23 July 2014. We had before us grounds of appeal filed on different dates, but they appear to be in identical terms. The grounds of appeal were filed in relation to the conviction on the second charge. They were, firstly, that the Tribunal had erred in law and was in breach of the rules of natural justice and ultra vires its jurisdiction by adjudicating upon the determination of the civil and legal rights and obligations of the Appellant and other private parties touching and concerning the validity and enforceability of private contractual obligations contrary to section 6(8) of the Bermuda Constitution Order 1968 (‘the Constitution’).

7 Secondly, the grounds contended that notwithstanding the execution of a legally binding contract exhibiting the legal intention of the...