‘Loyalty clause’ concerns attorneys

A section of the draft Legal Practitioners Bill for Cayman has some attorneys’ groups worried about where their loyalties lie.

What’s caused the concern is just one paragraph contained in a 17-page attorney’s code of professional conduct; the code is part of the Legal Practitioner’s Bill

The paragraph reads: ‘No client is entitled to receive nor should any attorney-at-law render any service or advice involving disloyalty to the islands or disrespect for judicial office or the corruption of any persons exercising a public or private trust or deception or betrayal of the public.’

The phrase ‘disloyalty to the islands’ is not defined in the bill.

The offences of treason, sedition, official corruption, and acts of disrespect to any judicial proceeding or the judiciary already exist in the Penal Code.

Neither Solicitor General Cheryll Richards, nor Attorney General Samuel Bulgin, nor Chief Justice Anthony Smellie have responded to Caymanian Compass queries about what ‘disloyalty to the islands’ in the practice of law, outside what is already defined in the Penal Code, would entail.

Both the Cayman Islands Criminal Defence Bar Association and the Cayman Islands Law Society have issued statements in response to Compass questions about the issue.

‘We believe that every legal practitioner must not compromise his or her professional standards in order to please either his or her client, a court or any third party. We would be concerned, however, if the effect of any provision of the bill or code of conduct would be to compromise the duty of every legal practitioner to promote and protect fearlessly and by all proper and lawful means the best interests of his or her client, or which would affect public confidence in the legal profession and the administration of justice in the Cayman Islands,’ a statement from the Criminal Defence Bar Association read.

The statement continued: ‘We take the view that every individual has the right to expect that the absolute independence, integrity and freedom from external pressures of his or her legal representative will not be compromised, and that every lawyer must feel free to act in accordance with his or her duties. We believe the phrase ‘disloyalty to the islands’ – undefined in the bill – may lack clarity in the context and in some circumstances could have the effect of creating a perception of a limitation on the freedom of a legal practitioner to act in accordance with those duties.’

The defence bar, which was formed after the public comment period for the Legal Practitioner’s Bill ended, stated it has no problem with the bill or code of conduct in general. But the group’s statement indicated it did have concerns about this specific section.

Certain sections of the code of conduct in the bill appear to promote the professional freedom of attorneys practicing before the court.

Paragraph three reads: ‘An attorney-at-law shall scrupulously preserve his independence in the discharge of his professional duties.’

Paragraph eight reads: ‘An attorney-at-law shall defend the interests of his clients without fear or judicial disfavour or public unpopularity and without regard to any unpleasant consequences to himself or to any other person.’

Cayman Islands Law Society President Charles Quin endorsed the Criminal Defence Bar Association’s statement. He also noted the society had some dissatisfaction with the Legal Practitioner’s Bill in general.

‘We have reviewed the Law Reform Commission’s draft and don’t believe it is suitable for today’s modern Cayman Islands legal profession,’ Mr. Quin said in a prepared statement.

Mr. Quin said he had submitted comments to government about the draft bill on behalf of the law society.

The Legal Practitioner’s Bill still requires approval of the Legislative Assembly before it is written into the law. It’s not clear when the final proposal will be presented to lawmakers.