Foreign attorneys exempt while Caymanians wait for articles
A Freedom of Information Request has revealed 10 exemptions were granted by Cabinet for non-Caymanians to article with local firms during the past five years.
According to records provided to the Portfolio of Legal Affairs by the Caymanian Bar Association, eight Caymanians were without articleship or with delayed articleship during the same period of time. The FOI request went on to state that the non-Caymanians had “strong family connections,” though the document did not state the exact nature of those connections.
In addition to the 10 exemptions, consent was given in one instance to an applicant to attend the Professional Practice Course.
According to the Portfolio of Legal Affairs, their records “do not reflect the names of the law firms to which the exempted individuals were employed,” adding that “… the fact that an exemption was granted is not indicative of the fact that articles were secured.”
The portfolio did not release the nationalities or names of the exempted individuals citing that, “This aspect of the request relates to personal information and is exempt from disclosure pursuant to section 23 (1) of the Freedom of Information Law.”
Information requested regarding the name of the person or individuals that requested the exemptions for foreign nationals to be articled was also withheld.
During the past five years, there have been 10 Caymanian clerks ranging from 24 years of age to 55 articled with the Office of the Solicitor General/the Attorney General’s Chambers.
The Caymanian Compass contacted Abraham Toppil of the Caymanian Bar Association and Cayman Islands Law School Director Mitch Davies for comment. However, both men declined to comment on the issue. Mr. Davies only noted that, “This is a situation that the Legal Practitioner’s Bill, which is now under review, will address.”
On 11 October, 2010, Attorney General Sam Bulgin convened a meeting at which members from the Cayman Islands Law Society, the Caymanian Bar Association, Cayman Islands Premier McKeeva Bush, government ministers, members of the Legislative Assembly and other attorneys were in attendance to discuss, among other things, moving the Legal Practitioner’s Bill forward. The meeting was unable to progress because of certain unresolved historical concerns about the state of the legal profession. As a result, the premier invited local attorneys Sherri Bodden-Cowan and Theresa Pitcairn to look into the issues and prepare a report with the view to make suggested changes to the bill.
In a letter to Dale Crowley of the Caymanian Bar Association and Charles Jennings of the Cayman Islands Law Society dated, 20 May, 2011, the premier noted, “It has been apparent for years that there is a conflict between the Caymanians and non-Caymanians in the profession …” He added that, “One need not look any further than the fact that there are two professional bodies that represent the profession and very few Caymanian lawyers have advanced within firms to equity status in the larger offshore firms in the 40 odd years that the offshore firms have been operating locally.”
The debate and concerns surrounding the bill before its scrutiny and subsequent modification include the 2003 revision of the Legal Practitioners Law, which has been languishing since that year.
“… [N]o government administration has ever been able to get it to the LA due to this stalemate: Caymanian lawyers complain to the politicians that they are discriminated against, cannot find articles unless handpicked, cannot get adequate or training equal to that provided to their foreign colleagues and that only foreign lawyers are promoted to salaried partnership level. They also state that even if they do get articles, the training is inadequate and oftentimes they are squeezed out of the firms to enable them to employ foreign lawyers; that is, until the foreign lawyer obtains status.”
Under the Immigration Law and Regulations firms are required to provide adequate training to Caymanian lawyers.
Caymanian lawyers have also expressed to the committee tasked with developing the Legal Practitioners Bill that, “… it is useless bringing any complaints to the Caymanian Bar Association or the Cayman Islands Law Society, as both organisations are largely controlled by the two largest firms. But in any event, it is argued that if they do bring complaints to the professional organisations, because the CBA and CILS are chaired by persons from the larger firms or ex-partners, who may or may not even have a practicing certificate from those firms, their lives will be made very difficult in the firms, they may be fired or constructively dismissed or blacklisted. We are told that the Caymanian lawyers tolerate the abuse because they fear losing their jobs or being blacklisted, where they are unable to find any employment in their profession given the size of the profession and shared views between the various partners in certain firms on this issue,” Mrs. Pitcairn said.
She added that some Caymanian lawyers contend, “This issue is compounded by the fact the Business Staffing Plan Board does not enforce the Immigration Law in circumstances where they have clear evidence of misconduct or that law firms are in breach of the Immigration Law.”
Mrs. Pitcairn went on to point out that she was told, “… the BSPB will not enforce the law because the politicians fear the ramifications that will flow from this, as firms have threatened to move their business elsewhere, historically and in present day Cayman, if they do not get the permits that they want. The BSPB has also advised Caymanian lawyers who arguably have legitimate complaints against the firms, to withdraw their complaints because they fear that they will be blacklisted or that their careers will be destroyed.”
Some other issues being looked at in an attempt to end the stalemate dogging the Legal Practitioners Bill since 2010 are regulating the practice of Cayman law outside the Cayman Islands, addressing the issue of more than 132 attorneys practicing Cayman Islands law from overseas offices, the practice of law not being defined; making it difficult to claim any breach and how to deal with firms who have no connection to the Cayman, holding themselves out as practicing Cayman law.
Mrs. Bodden Cowan has a wealth of legal experience relating to immigration issues. Mrs. Pitcairn was the first female chairperson of the Caymanian Bar Association. She brings her in-depth expertise of the offshore industry to the exercise. Both women have served on the majority of government boards.
“The attorney general and I believe these women to be ideally suited to conduct the responsibilities mentioned herein and to carry them out with the necessary diligence and rigor,” Premier Bush said of the women’s appointment, which commenced in October 2010 and is nearing completion.