Discipline

As regulator of Bermuda’s legal profession, the Association is responsible for both the regulation and discipline of members of the legal profession in Bermuda. Barristers & Attorneys admitted to the Bar in Bermuda are held to the same standards as other reputable Commonwealth jurisdictions.

Through an elected Bar Council the Bar Association is responsible for matters pertaining to admission to practice law in the jurisdiction and rules of conduct for its members.

The Bermuda Bar Association is privileged to be allowed to self-govern. The power to discipline its members is vested in the Bermuda Bar Council by the Bermuda Bar Act 1974.  There is a Code of Conduct that members are expected to abide by.  The Professional Conduct Committee investigates complaints where Barristers & Attorneys admitted to the Bermuda Bar may have failed to meet standards of professional competence, conduct and regrettably in some cases dishonesty. The governing body also prosecutes illegal practitioners who practice law or provide legal services to the public who are not licenced and have not been issued a Practising Certificate (renewal required annually).

In addition, in recognition of the fact that the legal profession is self-governing, the Bar Association receives, investigates and adjudicates complaints about its members.

In the course of the year, Disciplinary Tribunals have sat with the Chief Justice, or his Puisne Judges presiding. 

Summary of complaints 2023/2024

From 1^st April 2023 through 31^st of March 2024, the Professional Conduct Committee (“PCC”) sat with members Delroy Duncan K.C., Keith Robinson, Lorren Wilson, Saul Froomkin K.C., Susan Davis-Crockwell, Larissa Burgess and me as chair. I have chaired twelve meetings since the last report.

There were thirty (30) new complaints filed during the year, up by twelve (12) from the previous year. Eight (8) complaints remain on hold pending the outcome of civil proceedings. Three complaints were placed on hold last year pending the final outcome of prosecutions by DPP which have now concluded with the convictions referred to above. They will move forward based on the Certificates of Conviction.

In the course of the year, thirty-four (34) complaints were closed, dismissed, admonished or withdrawn. The Committee is still actively investigating thirteen (13) open complaints. It remains disappointing that some attorneys who receive a 14-day letter, the first stage of a complaint, do not see fit even to respond that they have received it, let alone deal with the allegations made.

Tribunal Hearings

At the last report, thirty-five (35) cases were either pending charges or in progress at the disciplinary tribunal level. I am pleased to report that most of these complaints have progressed where two (2) are pending charges, five (5) hearings concluded, thirteen (13) currently active at various stages of the disciplinary process (preliminary, mention hearings, further mention hearings and finally the substantive hearing with a decision) with four (4) on hold due to diminished capacity of the attorney. This significantly reduced number is attributable to Bar Council successfully recruiting Mr. Saul Froomkin OBE, KC to the post of Prosecutor on a one-year contact, subject to extension. Two matters are still being prosecuted by outside counsel; however, the remainder of tribunal matters fall under the control of Saul Froomkin who works out of the Bar Office.

In the past, Bar Council found it difficult to secure the services of panel members to sit alongside the chairing Supreme Court judge on disciplinary tribunals. However, I am pleased to report that recently there appears to have been a significant uptake from members to accept the invitation rather than to decline. This is a welcome positive development. It should be appreciated that there is pride to be taken from receiving an invitation from Bar Council or the Chief Justice for appointment to a panel and it should be considered as a part of an attorney’s duty to serve her/his profession when called on. ‘Conflict’ as a tribunal member must always be considered but simply having a cordial relationship with a colleague who is now a ‘respondent’ is not necessarily a reason to refuse to serve.

Notices of convictions of attorneys by Tribunals are published in the Official Gazette. This is only in cases where there is a fine imposed, a suspension or a disbarment involved. Admonishments are not published and this may give the impression that our members are rarely disciplined. The PCC and the appointed disciplinary tribunal panel members are kept busy and it remains to be seen if the recent highlighting of the serious failures of attorneys, as set out above, will give the disciplinary tribunals an impetus to consider more severe punishments in line with those meted out in other jurisdictions.

Inspectors appointed to review accounting practices of the firm pursuant to Rule 7 of the Barristers (Accounts and Records) Rules 1976

There is no change under this head with seven complaints under the direct review of Deloitte & Touche inspectors, appointed by Bar Council to investigate forensic accounting of funds held within a law firm.  

Fees Arbitration Committee (John Riihiluoma (Chair), Shirley Simmons & Mark Diel (conflicts considered at time of processing Arbitration) 

Generally speaking, the amount of legal fees charged to a client is not a matter governed by the Barristers’ Code of Professional Conduct 1981. Other than in the area of conveyancing, the Bar Council cannot and does not regulate what attorneys charge their clients for their services. The Bar Council does not have any statutory basis to deal with a complaint over fees unless if it is evident that the fee is unfair or unreasonable. In such a case the matter is referred to the PCC as a possible violation of the Code.

The Fees’ Arbitration Committee is made up of three senior members of the Bar who volunteer their time to hear such complaints. Both parties must agree to be bound by the decision of the Fees Committee prior to having the matter reviewed. There were two (2) matters relating to fee disputes processed over the year. The three members are John Riihiluoma (chairman), Shirley Simmons and Mark Diel. The PCC expresses its thanks to them for their excellent service.    

Where a fees’ inquiry has been raised with Bar Council 

Bar Council and the PCC announced in 2020 that the Fees’ Arbitration Committee agreed to extend the scope of their appointment to where clients aggrieved by legal fees charged (where there is no allegation of professional conduct) may now opt to have their matter heard free of charge by the Committee provided that both the law firm and the client agree in writing to be bound by the decision of the Fees’ Arbitration Committee. Arbitration Rules will apply. Either side, after having attempted to resolve the dispute may have the matter adjudicated under a Fees’ Arbitration. Copies of all invoices for work carried out would be provided to the Bar Office together with the narrative as to why there is a dispute for provision to the Committee. The Committee may impose further requirements as they see fit. A suitable date is then confirmed with both parties to attend a hearing. The complainant will not be charged any additional fees from the law firm other than what they have already been invoiced.

Year over year comparison table (3 year):

The Tribunal Process Explained

Once the Professional Conduct Committee (PCC) has made its initial investigation, it determines how best to deal with the complaint.  If minor, the PCC can administer an admonition.  Otherwise, the complaint is referred to a tribunal.  The charges are filed with the Chief Justice. Where a member of the public is the complainant, Bar Council puts forward two active members of the Bar to sit on the tribunal.  When Bar Council is the complainant, the Chief Justice appoints the two members of the Bar to the tribunal.  The tribunal is always chaired by a Supreme Court Judge.  A preliminary hearing is held usually within four to six weeks of receiving the convening notice with the substantial hearing scheduled approximately 6-8 weeks later.  The preliminary hearings are short with the substantial hearings taking anything from a half day to 2 or 3 full days.  The hearings are in private unless the attorney elects to have it dealt with publically.

When Bar Council asks members of the Association to sit on a tribunal there is usually a positive response on the part of the member to do so. We have seen more members agreeing to the appointments this year rather than declining. Indeed, it is a privilege to be invited for a panel appointment by the Chief Justice or Bar Council as members who have past, or current infractions recorded against them will not be invited for appointment. ‘Conflict’ has to be considered but simply having a friendly relationship with a colleague who is now a ‘respondent’ is not in itself conflict, otherwise we would be in great difficulty ever forming a tribunal. Additionally, panel members are selected on the basis of similar, or more years of call than the respondent as the respondent is entitled to a jury of his/her peers.

Public Hearings, Suspensions & Disbarments

On average 3-5 Tribunals are convened each year in this jurisdiction. Please note that only Published Notices appear in this section. In order for a matter to be published, there must be a fine, suspension from practice or disbarment/struck off the Roll imposed.  Of the tribunal hearings held since 1993, the following public notices appeared in the Official Gazette:

PUBLIC HEARING AT REQUEST OF RESPONDENT BARRISTER & ATTORNEY: 

• Bar Council & CoH against Eugene Johnston (12 May 2016 - 11 December 2018) Respondent requested a public hearing. Resulted in the Respondent found guilty of breaches to the Barristers' Code of Professional Conduct 1981 Rules 4, 6, 73(v), 103 & 108. The Respondent received an admonishment by the Disciplinary Tribunal, with no fine, suspension or costs awarded. Publishing of the Ruling is under consideration by the Registrar of the Supreme Court.

PUBLISHED NOTICES:

Active Suspensions published in the Official Gazette:

• None active at this time

Unable to practice until compliance with order of the Tribunal ruling:

• Wanda Bowen Ebbin against Braxton Philip (11-Jun-14): Breach of Rules 6(ii), 6 (iv) of the Barristers Code of Professional Conduct 1981. Found guilty of Charges and suspended from practicing conveyancing work for 2 years. Ordered to repay legal fees to complainant in the amount of $9, 266.25 Costs awarded to the Prosecutor in the amount of $2, 500. (fees remain unpaid to complainant and cannot practice)
• Francine Hodgson against Braxton Philip (5-Dec-13): Breach of Rules 6(ii), 6 (iv) of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Ordered to repay legal fees to complainant. Costs awarded to the Prosecutor in the amount of $500. (fees remain unpaid to complainant and cannot practice)

Completed Suspension/Admonishment/Fines (Published):

• Bar Council v John Blackwood (April 2024): On 22 April 2023 the Respondent Mr. John Blackwood was charged with improper conduct to witch conduct unbefitting a barrister contrary to sections 17(1)(e) and 17(1)(d) of the Bermuda Bar Act 1974 as read with Rules 6(ii) and 108 of the Barristers Code of Professional Conduct 1981. Particulars of said charges are that on 9 December 2022, when attending a social function and whilst in an intoxicated condition, he failed to act with good faith and courtesy in his relationship with another barrister; when approaching the Complainant, he repeatedly shouted extremely offensive and expletive-laden words at the Complainant causing her to feel uncomfortable and forcing her to leave the said function. On 18 December 2023, the said John Blackwood appeared before a Bar Disciplinary Tribunal and pleaded guilty to said charges. After hearing submissions on behalf of the Complainant and on behalf of the said Respondent John Blackwood, the said Tribunal ordered that: i) strongly admonished, ii) fined the sum of $3,000, and iii) shall pay the costs of counsel for the complanant together with the admnitratve costs and expenses incurred by the Professional Conduct Committee.

• Roderick Butterfield against Mark Diel (26 July 2022): A Complaint was made against Mark A. C. Diel, Barrister and Attorney, on 28^th February 2019 which resulted in the following charge being made against the said Mark A. C. Diel:- Breach of Section 17 of the Bermuda Bar Act 1974 (“the Act”) arising from conduct unbefitting a barrister as referred to in Section 17(1)(d) of the Act and breach of the Barristers' Code of Professional Conduct 1981as referred to in Section 17(1)(c) of the Act, in particular Rules 6(ii), 15 and 103 of the Barristers' Code of Professional Conduct 1981. The particulars of the charge were that Mark A. C. Diel, the Respondent, as the Managing Partner of Marshall Diel & Myers (the "Firm"), which Firm in acting in matrimonial proceedings on behalf of the former wife of Complainant (the "Proceedings") sent correspondence about the Proceedings to the Human Resources Manager at the Complainant's place of employment. Complainant then made a comment on the social media website, "Maj's List Bermuda" on 20^th February 2019, where he expressed his displeasure at the Firm sending this correspondence. Four people commented on the Complainant's post. Thereafter, Respondent, identifying himself as the Managing Director of the Firm, posted in response on the same website. The Respondent's posting disclosed details of the Proceedings which were confidential. A Disciplinary Tribunal sat on 4^th July 2022 and by its Judgment on 26^th July 2022, the charge was determined to be proved and subsequently, on 31^st August 2022, the Disciplinary Tribunal ordered an admonishment, imposed a fine of $2,500.00 and costs of $12,500 to be paid by Mark A. C. Diel within seven (7) days of 31^st August 2022.

• Bar Council against William Paul King (14-Apr-16). Mr. King self reported trust account deficit to Bar Council. Tribunal panel found Mr. King guilty of breaching Rules 6(ii) and 33 to 35 of the Barristers’ Code of Professional Conduct 1981. In addition, was found guilty of breach of Rules 3, 4, 5, 6 and 8 of the Barristers’ (Accounts and Records) Rules 1976. Suspended from practice for 3 years. Costs awarded $1,000.
• Bar Council & Sharon Swan against Gordon Rick Woolridge Jr: (6 June 2018): On 31^st August 2017 Mr. Gordon Rick Woolridge Jr (“Mr. Woolridge”) was charged on a single complaint of improper conduct contrary to section 17 of the Bermuda Bar Act 1974 together with a breach of Rules 6(ii), 102, and 103 of the Barristers’ Professional Code of Conduct 1981. On 6 June 2018 the Tribunal found that the Respondent was guilty of the charge of engaging in improper conduct, contrary to rules 6(ii), 102, and 103 of the Barristers’ Code of Professional Conduct 1981, namely (1) The Respondent failed to file documents or appear in the underlying case for a client which resulted in the client being put through time and expense of a trial, with the Respondent having failed to establish a defence for the client; (2) The Respondent, as an officer of the court, knowingly failed to comply with court orders in relation to making a good a valid and enforceable debt; (3) The Respondent failed to put in place appropriate procedures to service his client in his absence during periods of illness.The Respondent’s Practice Certificate was suspended for thirty (30) days, or subject to liberty to apply, until documents were filed and approved by the Bar Council. Cost were awarded in the amount of $3,000 to the prosecutor payable in monthly enstallments of $500  
• Bar Council against Kamal Worrell (28 July 2017). The Tribunal found that Mr. Worrell was guilty of the charge of engaging in conduct which was dishonest by falsely stating to the Registrar and the Court of Appeal that his doctor had advised the Respondent to confine himself to bed rest for several days, contrary to rules 6(ii) and 43(iv) of the Barristers’ Code of Professional Conduct 1981. Mr. Worrell is suspended from sole practice for six months from the date of this Order (i.e. from 1^st November 2017 until 30^th April 2018) and shall only be entitled to practise as an employee of a licensed firm or barrister and attorney, subject to certain conditions with liberty to apply in relation to costs and the implementation of the said conditions. Mr. Worrell is to be Supervised by Senior lawyer for period of 12 months from date of Order provided Mr. Worrell receives confidential waiver from clients for whom he acts and obtains the consent of his employer so as to enable Mr. Worrell to fulfil his obligations under the Supervision Agreement. Costs awarded to Prosecutor in the amount of $2,000 
• Tauwana Trott against Karen Williams-Smith (29-Nov-13): Breach of Rule 22 and 24 of the Barristers Code of Professional Conduct 1981. Plead guilty to both Charges. Admonished by Tribunal panel and fined $500 payable to the Crown. Cost awarded to the Prosecutor in the amount of $500 
• Bar Council & Paul Lacy against Llewellyn Peniston (9-Dec-11): Breach of Rules 6(ii), 6 (iii) and 108 of the Barristers Code of Professional Conduct 1981. Found guilty of all three Charges. Practising while suspended, failing to file Barristers Accountants report in timely manner and issuing threats Admonished and suspended from practice for 2 years. No costs sought by Prosecutor.  
• Bar Council against Takiyah Burgess (18-Sep-09): Breach of Rule 6 (ii) and 62 of the Barristers Code of Professional Conduct 1981. Plead guilty to both Charges. Admonished by the tribunal and fine payable to the Crown in eth amount of $1,000. No cost application sought by Prosecutor.
• Albert Smith against Llewellyn Peniston (13-Jun-08): Breach of Rule 7 of the Barristers (Accounts and Records) Rules 1976. Suspended from practice for 3 months. Costs awarded to the Prosecutor in the amount of $2, 500 and pay the Inspector which was appointed to review the financial operations of the firm. Mr. Peniston Appealed the decision of the Tribunal and the COA amended the suspension to 30 days.
• Bar Council against Lawrence Scott (18-Jan-07):  Breach of Rule 2 of the Barristers (Accounts and Records) Rules 1976. Found guilty of charge. Reprimanded by the Tribunal panel. Fined $2, 500 payable to the Crown. No costs order sought.
• Rhoda Evans against Lawrence Scott (4-Jun-07): Breach of Rules 6(ii), 6 (iv) and 13 of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Suspended from all practice for a period of 2 years with additional training required in handling client funds. No costs sought. 
• Mark Koren against Llewellyn Peniston (28-Nov-06): Breach of Rules 4, 6(ii), 6 (iii), 103 and 109 of the Barristers Code of Professional Conduct 1981. Found guilty of Charges. Suspended from practice for 12 months. Costs awarded to the Prosecutor in the amount of $7,500
• Bar Council against Carlsen Philip (9-Jun-05): Breach of Rule 7(3) of the Barristers (Accounts and Records) Rules 1976. Found guilty of Charge. Suspended from practice for 2 years. No costs sought by Prosecutor.
• Bar Council against Lawrence Scott (31-Jan-02): Breach of Rules 34 of the Barristers Code of Professional Conduct 1981 and Breach of Rules 4, 5 (a) through (e) of the Barristers (Accounts and Records) Rules 1976.  Found guilty of Charges. Suspended from practice for 3 months and ordered to establish a system of accounts which complies with Barristers (Accounts & Records) Rules 1976. No costs sought by Prosecutor.  
• Bar Council & Appleby Spurling & Kemp against Murray Kierans (7-May-93) Breach of Rules 6(ii) of the Barristers Code of Professional Conduct 1981. Found guilty of Charge. Fine in the amount of $1,500 payable to the Crown. No cost sought by prosecutor.

Disbarment/struck off the Roll of Barristers & Attorneys kept by the Registrar of the Supreme Court of Bermuda

• Irma Burrows against Llewellyn Peniston (8-Dec-11): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. No costs sought by the Prosecutor and no fines imposed.  
• Bar Council against Robert Martyn (27-Nov-07): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. Costs awarded to the Prosecutor in the amount of $2, 500
• Bar Council against Charles Vaucrosson (6-May-98): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 6(ii) of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. No costs sought by the Prosecutor and no fines imposed.  
• Bar Council against Lawrence Madeiros (16-Feb-94): Disbarred and struck off the Roll of Barristers & Attorneys. Breach of Rule 47 of the Barristers Code of Professional Conduct 1981. Relied upon criminal conviction. No costs sought by the Prosecutor and no fines imposed.  

The Registrar of the Supreme Court publishes orders that affect the status of a Barrister & Attorney if they are suspended or disbarred. The Chairman of the disciplinary Tribunal will close out the compliant by filing a Chairman’s report which shall remain private.