The role and function of the GLC in a changing profession
In a Gleaner report published on September 7, 2021, Mr Allan Wood, QC, chairman of the General Legal Council (GLC), is reported to have said that “members of the public, especially those who will be entrusting lawyers who practise on their own with large sums of money … should make serious enquires about how their monies will be managed before retaining one…”
This statement has been interpreted by several sole practitioners as being biased, offensive, and prejudicial. The learned chairman is also reported to have said, “If you are engaging a sole practitioner, an enquiry needs to be made about what will happen to my money or what happens to my business if you fall sick. Is there anyone who is going to carry on the practice? Is there anyone who is going to be able to access my money to pay out?”
Although the chairman is within his right in making these observations, solo practitioners must be forgiven for thinking that the chairman is ‘picking on them’ as opposed to large firm practitioners. These statements could also be interpreted to mean that it is safer for clients to retain large firms rather than solo practitioners.
ROLE AND FUNCTIONS
Section 3 (1) (b) of the Legal Profession Act states that the GLC “should be concerned with the legal profession and, in particular, with upholding standards of professional conduct”. Two of the most important functions of the GLC in upholding professional standards are the filing of annual accounts by attorneys-at-law and the discipline of their members who fail to follow the rules of professional conduct.
A check with the GLC will show that the overwhelming majority of attorneys at the private bar are in compliance with the filing of their accounts.
In his annual report to Parliament for 2019 to 2020, the chairman noted that the reasons for the low percentage of compliance (32.27 per cent) for 2019 is that the council at the report date “continued to receive accounts and reports and declarations with reports to this year and anticipate the usual deluge of declarations and accounting reports by September 31, 2020 when most became due ...”
Concerning discipline, a check with the GLC website revealed that for the period April 1, 2019 to March 31, 2020, there were approximately 2,343 private practitioners on the roll. During said period, there were approximately 303 complaints reviewed, of which 140 were withdrawn, 110 dismissed, two closed, and 51 upheld. Also, between 2017 and 2021, 70 attorneys were disbarred.
Since 1978, fewer than 100 attorneys have been disbarred or suspended. In my almost 13 years on the council, my recollections are that most of these cases are the result of professional negligence, especially in the management of accounts, rather than fraud.
These statistics, although of some concern, hardly requires the sounding of alarm bells. In recent years the GLC has promulgated a credible compulsory continuing legal education programme.
Mr Wood fails to understand the strong bonds or ‘roots’ that exist between sole practitioners and their clients. Historically, several of these attorneys went to primary school with these clients, or with their parents and grandparents. Upon becoming attorneys, they returned to practise and live in their communities. In their professional lives they developed relationships, sometimes under unfortunate circumstances. These clients are prepared to trust their attorneys with their lives and property. It is highly unlikely that these clients will end up in the boardroom of a Corporate Area law firm with their business. Telling these clients to check whether their attorneys have a current practising certificate or has professional indemnity insurance is almost like asking them to enquire whether their taxi driver or dentist is in possession of their licence or insurance policy before retaining their service. This is unlikely to happen.
Unfortunately, some attorneys make mistakes and find themselves before the disciplinary committee of the GLC on charges for professional misconduct or even fraud. Notwithstanding, the large majority of attorneys are young, talented, honest and hard-working professionals who keep the legal aid system alive quite often free of cost.
If Mr Wood and the GLC are really concerned about the welfare of attorneys-at-law and their clients, they should concentrate their efforts on pursuing measures to improve the development of the profession. They should work to implement compulsory indemnity insurance at an affordable rate and also to develop a viable GLC compensation fund.
PROFESSIONAL INDEMNITY INSURANCE
Most legal professions have provisions for professional indemnity insurance. In many jurisdictions it is compulsory. The problem is that it is very expensive. In Jamaica, attorneys are only encouraged to purchase same but most are unable to afford the high premiums.
The Legal Profession Act makes provision for the establishment of a compensation fund. The purpose of the fund is “to make grants to people who have suffered loss as a result of (a) the dishonesty of an attorney-at-law or an attorney-at-law’s employee; or (b) an attorney-at-law failing to account for money, or other property”. The maximum payment that any person may claim in one application is J$500,000.00. The fund is discretionary and is underwritten totally by the GLC with an initial investment of J$4 million since 2020.
Although the GLC is to be commended for this initiative, the investment is far too small for a country of this size with a profession of approximately 2,343 members and growing. I respectfully suggest that the GLC, effective 2022, make an annual contribution of J$10 million per annum to the fund. GLC audited financial statements for the years 2020-2021 disclose that they had a surplus in J$31,718,887.
Perhaps the GLC should mandate that each attorney make a small annual contribution to the fund.
In Barbados, each attorney is required to contribute approximately BB$200 per annum to their fund. Aggrieved clients with bona fide claims could then apply to the fund by right rather than by the discretion of the GLC.
Clayton Morgan is the chairman of the Montego Bay Legal Aid Clinic, and a former president of the Cornwall Bar Association, former vice-president of the Jamaican Bar Association and a member of the GLC. Email feedback to firstname.lastname@example.org and email@example.com