Cross border law practices a regional perspective final

CROSS BORDER PRACTISE OF LAW – A REGIONAL PERSPECTIVE Garth Patterson, QC1 The consideration of the issues relating to the practise of law across territorial borders is essentially a study of the legal, practical and socio-political intersections that lawyers must traverse in delivering legal services outside their domestic arena.

The cross border practise of law might take several forms, from travelling overseas to meet with foreign clients; conducting due diligence on complex, multi-party international transactions; providing legal opinions in connection with international financial transactions), to more formal but occasional (e.g. appearances on record in a foreign court), to highly structured (e.g. setting up branch offices, and engaging staff, overseas). Variants may include establishing strategic alliances with foreign lawyers or law firms, or entering into fee or profit sharing arrangements with foreign counterparts.

To what extent, therefore, does the aphorism, “the Caribbean is your oyster” (apologies to Shakespeare) ring true for legal practitioners in the Caribbean region. This presentation will cover these issues from the perspective of practitioners engaged in practise within and throughout the English-speaking Caribbean. It will examine the provisions of some of the Legal Profession Acts in the region, and the relevant provisions of the Revised Treaty of Chaguaramas (the “CARICOM Treaty”, which established the Caribbean Community including the CARICOM Single Market and Economy, also known as “CARICOM”2) that pertain to the free movement of CARICOM nationals, the right to provide legal services and the right of establishment. Finally, it will briefly explore some of the challenges, threats and opportunities presented by the cross border practise of law.

1

I wish to acknowledge the invaluable assistance and insight provided by Gladys Young, Senior Legal Officer in the CSME Unit.

2 There are 15 countries that are members of CARICOM, namely: Antigua and Barbuda; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Haiti; Jamaica; Montserrat; St. Kitts and Nevis; St. Lucia; Suriname; St. Vincent and the Grenadines; and Trinidad and Tobago.

The Legal Profession Acts The logical starting point of the analysis is the statutory and regulatory framework within which law is practised by attorneys-at-law within the region. In most of the Commonwealth Caribbean states the principal legislation governing the legal profession is entitled, the “Legal Profession Act” (the LPAs). The LPAs are very similar in many respects. Broadly speaking, they define an “attorney-at-law” as a person whose name is entered on the Roll, and prescribe the qualifications required for admission to practise law.

When considering doing legal work in another Commonwealth Caribbean state, therefore, it is necessary to determine whether the proposed activity will constitute the practise of law for the purposes of the relevant LPA, and, if it does, to understand the criteria that must be satisfied in order to qualify for admission to practise.

Unauthorised practise of law Most of the LPAs in the region are decidedly vague on the question of what, precisely, constitutes “practising law”. The formulation that is replicated in the definitions sections of the LPA’s is to the effect that “practise as a lawyer”3 or “practise law”4 means to practise as a Barrister or Solicitor or an Attorney-at-law, or the undertaking or performing of the functions of a Barrister or Solicitor or Attorney-at-law as provided or recognised by any law, whether before or after the passing of the relevant Act. The definitions are circuitous and unhelpful. While not providing clear guidance on what constitutes practising law, the LPAs all somewhat circuitously prohibit the practise of law by non-lawyers5. The prohibition is, again broadly speaking, expressed in words to the effect that it is an offence for any person: (i)

who is not enrolled to practise as a lawyer

3

Jamaica Barbados, Trinidad & Tobago, St. Lucia 5 S8. LPA Jamaica; S. 12 LPA Bdos; S. 47 LPA Trinidad 4

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(ii)

(iii)

who is not enrolled to willfully pretend to be, or make or use any name or title or description implying that he is qualified or recognized as qualified to act as an attorney; or who is not qualified or entitled to act as an attorney, to act in any respect as an attorney in any action or matter or in any court in the name or through the agency of an attorney entitled to practise.

To discern what constitutes the practise of law, therefore, it is necessary to resort to the case law to see how the judges have construed the term. However, there is a paucity of cases that attempt to define what it means or meant to practise as a barrister or solicitor, or indeed what it means to practise as an attorney-at-law. Most attempts at a definition have been made in the context of criminal prosecutions for the unauthorized practise of law.

In Lawler, Matusky & Skelly v. The Attorney General of Barbados6, Williams J. on a case stated by an arbitrator had to determine whether representation of a party in arbitration proceedings constituted the practise of law. In answering that question in the negative, he said: “The practice of law can have a variety of meanings, one more restrictive or extensive than the other, depending on the circumstances and the relevant jurisdiction and law.

What is and what is not the practice of law has been the subject of much litigation and discussion in the American Courts. And the cases reveal the scope of proceedings over which it is capable of extension.

In Matter of Duncan 83 S.C. 186 it is said at p. 189 "It is too obvious for discussion that the practice of law is not limited to the conduct of cases in Courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and Courts, and in addition, conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney-at-law is one who engages in any of these branches of the practice of law."

6

BB 1983 HC 63

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To the like effect was the statement of the Court in Eley v. Miller 7 Ind. App. 529 at p. 535 "As the term is generally understood, the practice of law is the doing or performing of services in a Court of justice in any matter depending therein, throughout its various stages and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a Court."

The definition of "practise of law" in Black's Law Dictionary 5th Edition at p. 1055 seems to cover an even wider field "The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent: R.J. Edwards, Inc. v. R.L. Hert Okl 504 P. 2 d. 407, 416. It is not limited to appearing in Court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds and the giving of all legal advice to clients. It embraces all advice to clients and all matters taken for them in matters connected with the law. Rhode Island Bar Association v. Lesser 68 R.I. 14, 26 A. 2 d. 6, 7. An attorney engages in the "practice of law" by maintaining an office where he is held out to be an attorney, using a letterhead describing himself as an attorney, counselling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate: State v. Schumacher, 214 Kan 1, 519 P.2 d. 1116, 1127."�

There is a broad range of activities, therefore, that could arguably fall within the scope of practising law. It could embrace any advice to clients and a wide range of services rendered to them in connection with the law. Within a cross border context, however, the LPAs must be construed in accordance with the ordinary rules of statutory construction, in particular the presumption against extra-territoriality. The basic rule is that “although an enactment may be expressed in general terms, the area for which it is law (known as its extent) must exclude territories over which Parliament lacks jurisdiction. It also excludes territories for which

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Parliament did not in that enactment intend to legislate”7. In the Privy Council decision in Liangsiriprasert v United States Government and another8, Lord Griffith said: “When approaching the construction of a statute, particularly a criminal statute there is a strong presumption that it is not intended to have extra-territorial effect and clear and specific words are required to show the contrary: see Air India v Wiggins [1980] 2 All ER 593, [1980] 1 WLR 815 and Holmes v Bangladesh Biman Corp [1989] 1 All ER 852, [1989] AC 1112, [1989] AC 1112. This presumption arises from the assumption that the legislature

does not intend to intrude on the affairs of other countries, which should be left to order affairs within their own boundaries by their own laws”.

A related rule is that “unless the contrary intention appears, and subject to any relevant rules of private international law, an enactment is taken not to apply to foreigners and foreign matters outside the territory to which it extends”9. Consequently, it is doubtful that the giving of legal advice to foreign clients that are resident in another country will excite the provisions of LPA of that other country that prohibit the unlawful practise of law, even if the advice relates to the laws of that foreign country. A Jamaican lawyer giving advice from his office in Jamaica to a Barbadian resident client on matters of Barbados law will likely not be acting in contravention of the Barbados LPA, although his actions could expose him to a negligence claim or perhaps to sanction under his domestic rules governing the ethics of the profession.

Qualifications to be admitted to practise For all lawyers in the region who have pursued the course of study and professional training in law provided by the Council of Legal Education (the “Council”) established by the Agreement Establishing the Council of Legal Education (the “Agreement”), and have obtained the certificate, diploma, licence, or other status or form of recognition awarded by the Council, there should be

7

Bennion on Statutory Interpretation, Section 102 [1990] 2 All ER 866 9 Bennion, Ibid., Section 130 8

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no difficulty in qualifying to admitted to practise. Amongst other countries, Barbados, Jamaica, Grenada, Dominica, Guyana, St. Lucia and Trinidad and Tobago are all signatories to the Agreement.

Article 5 of the Agreement codifies a reciprocal arrangement between the

signatories, the minimal requirement being the Legal Education Certificate: Article 5 “Admission to Practice” “The Government of each of the participating territories undertakes that it will recognise that any person holding a Legal Education Certificate fulfils the requirements for practice in its territory so far as institutional training and education are concerned and that (subject to the transitional provisions hereinafter contained and to any reciprocal arrangements that any of the said territories may hereafter make with any other country) no person shall be admitted to practise in that territory who does not hold such certificate. But nothing herein contained shall prevent any territory from imposing additional qualifications as a condition of admission to practise therein. The foregoing provisions of this Article shall be subject to the terms of the Protocols to this Agreement which shall have effect for the purposes specified therein.”

Moore J in Parnell v Mottley10 described the objectives behind the Agreement as follows: “[30] … The Agreement establishes the body, namely, the Council of Legal Education and authorises that body to provide the education and training of persons who wish to practise law and the LPA provides for the admission of persons so educated and trained to practise law in Barbados. The participating territories intended to provide a uniform system of legal education and training within those territories and the legislature of Barbados intended to give effect to that system.”

The obligation of all participating territories is to recognize that any person holding a Legal Education Certificate fulfils the requirements for practice in its territory so far as institutional training and education are concerned. This commitment is reflected in the language of all the LPAs, which contain provisions to the effect that persons holding a legal education certificate, and satisfying the other qualifying criteria prescribed, are eligible11 or qualified12 or entitled13 to be admitted to practice law. The participating territories are entitled to impose additional 10

BB 2004 HC 26 Trinidad section 15(1).

12 Jamaica, section 6 13 Barbados, section 5 11

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qualifications as a condition of admission to practise, for example character, age, absence of criminal record and solvency.

The position of those lawyers who were grandfathered under the LPAs, however, might not be as clear. The provisions that recognize the qualifications of barristers, solicitors or attorney-atlaw that were already enrolled, or entitled to be enrolled immediately before the LPAs came into force are limited in their territorial scope. They do not have legislative effect beyond the borders of the enacting state.

So, for example, a barrister who was registered on the Roll in Jamaica under grandfathering provisions of section 4(2) of the Jamaica LPA undoubtedly is an attorney at law, but not a person who holds the qualifications prescribed for persons applying to be admitted after the LPA took effect. If he is desirous of being admitted in Barbados, he will not be able to rely on the grandfathering provisions of the Barbados LPA; nor will the grandfathering under section 4(2) of the Jamaica LPA have extra-territorial reach so as to entitle him, without more, to be registered on the Barbados Roll. He will not qualify to be admitted under sections 5 or 7 of the Barbados LPA, since those sections are limited to persons who obtained a certificate of legal education from the Council. He may arguably qualify under section 6, which provides for admission of practitioners from countries other than Barbados on the basis of reciprocal arrangements between Barbados and that other country, in this case, Jamaica. Admissions under this section, however, will require the Minister Responsible for Legal Affairs, after consultation with the Chief Justice, to be satisfied that: (i) (ii)

the LPA of Jamaica is such as to secure that Jamaican legal practitioners possess suitable qualifications and competency; and by the LPA of Jamaica attorneys-at-law of Barbados are entitled, or would if an order were made under section 7 be or become entitled, to admission as legal practitioners of the superior courts of Jamaica on terms as favourable as those on which Jamaican attorneys would be or become entitled to admission as attorneys-at-law in Barbados,

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If he is satisfied, then the Minister has discretion to make an order providing that from the date specified in the order any legal practitioner of Jamaica is eligible, on proof of his qualifications and good character, and on payment of the prescribed fees, but subject to such exceptions, conditions and modifications as may be prescribed in the order, to be admitted by the High Court to practise law in Barbados.

Article 6 of the Agreement is also relevant. It states: “The Government of each of the participating territories agrees that the following persons shall be recognised as professionally qualified for admission to practise in its territory, namelya) any national who is on 1st October, 1972 qualified to be admitted to practise as a solicitor or a barrister in that territory; b) any national who, prior to 1st January, 1985, had undergone or is undergoing or has been accepted for a course of legal training leading to a qualification such as is referred to in paragraph 2(b)(i) of Article 4 of this Agreement and obtains that qualification.”

This reflects the commitment of each the Governments of participating territories to effectively give recognition to the grandfathering provisions of LPAs of the other territories, under which barristers and solicitors who, prior to October 1972, were qualified to be admitted (or in fact admitted), were eligible to be admitted to the Roll of Attorneys.

While section 17 of the Barbados LPA empowers the Minister, after consultation with the Chief Justice, to make arrangements for the provision of a system of legal education and practical legal training, and mandates that “[i]n making arrangements for the carrying out of his functions under subsection (1) the Minister shall give due observance to the provisions of the Caribbean Legal Education Agreement”, including, necessarily, section 6 of the Agreement, no such “arrangements” have in fact been made.

In Trinidad and Tobago, a grandfathered practitioner from any of the other participating territories to the Agreement would seem to qualify, since the phrase “qualifications prescribed by law” is defined to mean the qualifications for admission to practise law set out in the 8|Page

Agreement14. This would, it seems, embrace the provisions of section 6 of the Agreement. In any event, a grandfathered practitioner from another territory should be able to request admission by Ministerial order. Section 15A provides that the Minister, where he considers it necessary or expedient after consultation with the Chief Justice, may by Order provide that a Commonwealth citizen who has been admitted to practise in a Commonwealth country for at least ten years, is eligible to be admitted to practise law in Trinidad and Tobago on such terms and conditions, including but not limited to the duration of the admission, as the Minister may specify in the Order.

Anti-competitive provisions – restricting inbound admissions to practise Most of the regional LPAs contain provisions that could be considered as protectionist in nature – aimed at protecting the local or indigenous legal professionals from outside competition. In addition to obtaining the requisite qualifications, eligibility to be admitted to practise law in the region may be dependent upon the applicant having status as a Commonwealth citizen15 or a citizen or national of a CARICOM member state16. Lawyers that are neither Commonwealth citizens nor CARICOM nationals (“foreign lawyers”), even if otherwise qualified, might not be eligible for admission without more. In Barbados, for example, the Minister has discretion, under section 6 to make an order for lawyers who are citizens or nationals of a country (other than Barbados or any CARICOM member state) designated in the order, to be eligible to be admitted to practise in Barbados, provided that reciprocal provisions exist in that country for admission of Barbadian attorneys-at-law. Similarly, under section 7 the Minister has discretion to make an order for citizens or nationals of a country other than Barbados or any CARICOM member state, who have obtained a certificate of legal education from the Council, to be eligible to be admitted to practise in Barbados. The exercise of that discretion will be based on the Minister being satisfied, after consultation with the Chief Justice, of the existence in such other country of

14

Section 15(5) Jamaica, LPA s. 6(1); Trinidad, LPA s. 15(1) 16 Trinidad, LPA s. 15(1); Barbados, LPA s. 5(1) 15

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reciprocal laws pertaining to the eligibility for admission to practise in that country of Barbadian citizens or nationals who possess the qualifications that would entitle a citizen or a national of that country to be admitted to practise as a legal practitioner in that country.

In Trinidad and Tobago, similar reciprocity provisions17 apply to enable foreign lawyers to be eligible for admission, if the Minister so orders. Jamaica, on the other hand, bars “aliens”18, and the LPA makes no provision for discretionary admission of aliens, regardless of considerations of reciprocity or training.

In Saint Lucia, the LPA contains eligibility provisions that differentiate between citizens and noncitizens. Citizens are eligible without more to be admitted19, while eligibility of non-citizens20 depends on the Attorney General making an order declaring that the proposed applicant is eligible to be admitted to practise law in Saint Lucia. The Attorney General cannot make such an order unless he is satisfied, after consultation with the Chief Justice, that the proposed applicant is a citizen or a national of a country the laws of which gives reciprocal treatment to a citizen of Saint Lucia in relation to admission to practise law in that country21.

The British Virgin Islands (“BVI”)22 is not a member of CARICOM, and while it is a signatory to the Agreement, it does not readily accept “non-belongers”23 for admission to its bar. A person who is not resident in the BVI will not be issued with a practising certificate (and if he/she already holds certificate, it is not valid for more than three months), unless he/she is employed in the overseas affiliate of a law firm that holds a trade licence under the Business Professions and Trade Licences Act and operates in the BVI.

17

Section 16(2) “alien” means a person who is not a Commonwealth citizen, a British protected person or a citizen of the Republic of Ireland.

19 Section 15 20 Defined in section 16 as “a person who is a citizen or a national of a country other than Saint Lucia” 21 Section 16 22 BVI is an Associate Member.

23 “belonger” is defined as a person who is deemed to belong to the Virgin Islands in accordance with section 2 of the Virgin Islands Constitution Order, 2007 18

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The CARICOM Treaty Having satisfied the eligibility requirements and qualifications for admission to practise, a further practical hurdle relates to navigating the regional immigration laws that might otherwise create obstacles to residing or working in the target country. For nationals of CARICOM member states, the pathways to practising throughout the region have been substantially cleared by the provisions of Chapter 3 of the CARICOM Treaty, which guarantee to CARICOM nationals the right of free movement, the right to provide services and the right of establishment. Almost all CARICOM member states24 have passed legislation enacting the provisions of the CARICOM Treaty into law25. Most26 such states have also passed additional legislation aimed at facilitating and effecting the implementation of the movement, services and establishment provisions of the CARICOM Treaty, which are the pillars on which regional economic integration is founded, and on which the success of the so-called CARICOM Single Market and Economy (“CSME”) depends.

Right of establishment provisions The right of establishment allows CARICOM nationals27 to establish a business presence anywhere in the CSME. Articles 32, 33 and 34 of the CARICOM Treaty guarantee that any national of CARICOM can engage in any non-wage earning28 activity of a commercial, industrial, professional or artisanal nature, or create and manage economic enterprises, including any organization for the production of trade in goods and the provision of services owned or

24

With the exception of the Bahamas and Montserrat Caribbean Community Act (Jamaica, Trinidad and Tobago, Barbados, St. Lucia, Guyana, Belize) 26 With the exception of Haiti and Jamaica 27 Article 32, paragraph 5 states that “a person shall be regarded as a national of a Member State if such person - (i) is a citizen of that State; (ii) has a connection with that State of a kind which entitles him to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the laws thereof relating to immigration; or (iii) is a company or other legal entity constituted in the Member State in conformity with the laws thereof and which that State regards as belonging to it, provided that such company or other legal entity has been formed for gainful purposes and has its registered office and central administration, and carries on substantial activity, within the Community and which is substantially owned and effectively controlled by persons mentioned in sub-paragraphs (i) and (ii) of this paragraph”.

28 Article 32 defines "non-wage earning activities" as activities undertaken by self-employed persons 25

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controlled by them, in any member state participating in the CSME.29 The provisions on right of establishment also accord free movement to self-employed service providers and entrepreneurs, and require Member States to establish measures to ensure the removal of restrictions on the right of establishment in respect of the provision of services, as they relate to the conditions governing the entry of technical, managerial and supervisory staff, as well as their spouses and immediate dependent family members.30 Articles 32 and 33 prohibit the introduction of any new restrictions, and require Member States to remove any existing restrictions, on the right of establishment. Restrictions to the right of establishment were removed either collectively, under the Movement of Factors Acts31, or by specific legislation32 or measures addressing the following: • • • •

restrictions on the movement of capital; restrictions of the provision of services; restrictions to entry into particular industries; and and restrictions to special licenses, permits, authorizations and incentives.33

Legal practitioners who are nationals of a Member State are entitled, therefore, to establish themselves as sole practitioners, or establish (or be a partner of) a law firm, in any of the other Member States, subject to any permitted restrictions34 imposed by that other Member State.

29

CARICOM Secretariat, “Revised Treaty of Chaguaramas, Establishing the Caribbean Community, Including the CARICOM Single Market and Economy” (Georgetown: CARICOM Secretariat, 2001). The Treaty speaks to any Member State but the Bahamas does not participate in the CSME. 30 Articles 34 31 Antigua & Barbuda, 2006; Belize, 2006; Grenada, 2006; Saint Lucia, 2006, St. Vincent, 2006, Guyana, 2006 32 Barbados, CARICOM Single market and Economy(Implementation) (Miscellaneous Provisions) Act, 2004; Dominica, Caribbean Community (Work Permit Exemption) Act, 2008; St. Kitts & Nevis, Administrative Waiver of Work Permit under the Immigration Act; Suriname, Administrative waiver of Work Permit under the Foreign Nationals Act; Trinidad & Tobago, The Caribbean Community (Removal of Restrictions) Act No. 2 of 2005. In some cases, several restrictions remain.

33 The Right of Establishment, CARICOM Single Market and Economy (CSME), Caribbean Community Secretariat 2010 34 See for example, paragraph 1(b) of Article 184, which provides that “Member States shall promote the interests of consumers in the Community by appropriate measures that … (b) ensure that goods supplied and services provided in the CSME satisfy regulations, standards, codes and licensing requirements established or approved by competent bodies in the Community” Also, Article 185 provides that “Member States shall enact harmonised

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Permitted restrictions would include obtaining any requisite qualifications, and taking necessary measures to be admitted in that country, to engage in the practise of law Right to Provide Services Articles 36 and 37 prohibit the introduction by Member States of any new restrictions, and require Member States to abolish any existing discriminatory restrictions, on the provision of services in CARICOM by nationals of other Member States, except as otherwise provided in the CARICOM Treaty. Paragraph 2 of Article 36 states: “Without prejudice to the provisions relating to the right of establishment, persons providing services may, in order to provide such services, temporarily engage in approved activities in the Member State where the services are to be provided under the same conditions enjoyed by nationals of that Member State.”

For the purposes of Chapter 3, "services" means services provided against remuneration other than wages in any approved sector and “the provision of services” means the supply of services: (a) (b) (c) (d)

from the territory of one Member State into the territory of another Member State; in the territory of one Member State to the service consumer of another Member State; by a service supplier of one Member State through commercial presence in the territory of another Member State; and by a service supplier of one Member State through the presence of natural persons of a Member State in the territory of another Member State.

Legal practitioners who are nationals of a Member State are entitled, therefore, to provide legal services in any of the other Member States, subject to any permitted restrictions imposed by that other Member State. The following observations should be made with respect to the operation of Article 36: •

Article 36 covers the provision of services on a temporary basis. The term “temporarily” has not been defined. It might, however, reasonably be contrasted with establishing an

legislation to provide, inter alia …(e) that the provision of services is in compliance with the applicable regulations, standards, codes and licensing requirements.”

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economic enterprise, or establishing a professional practice, of a permanent nature in the relevant Member State. It probably covers transient activities performed by a national of one Member State in or from within another Member State, such as representing a client in a particular case, attending client meetings, advising clients in connection with commercial transactions or corporate business etc.

•

The terms “approved activities” and “approved sector” are not defined.

•

Member States have not put in place the mechanisms for implementing their obligations under Article 36. In particular, no arrangements are in place for the relevant competent authorities to issue a CARICOM services certificate to facilitate the provision of services by nationals of one Member State in another Member State.

Free Movement Articles 45 and 46 of the CARICOM Treaty guarantee to nationals of Member States the right of free movement, and the right to seek employment, within CARICOM. For lawyers who will be engaged as wage or salary earners in another Member State, they might avail themselves of the right to seek employment accorded to certain categories of skilled labour recognised under Article 46. These include: (a) (b) (c) (d) (e)

university graduates35; media workers; sportspersons; artistes; and musicians.

This programme, which has been almost universally adopted throughout CARICOM36, requires that a CARICOM skills certificate be issued by the home state or by the host state. Lawyers from

The Legal Education Certificate would not be considered to be the same as a University degree 35

36

Caribbean Community (Free Movement of Skilled Persons) Act 1997, Jamaica; Immigration (Caribbean Community Skilled Nationals) Act, 1996, Trinidad & Tobago; Immigration (Caribbean Community Skilled Nationals) Act 1997, St.

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participating Member States who hold certificates of legal education will almost invariably qualify, since they are university graduates (although, quaere the position of attorneys who qualified under the articled systems37). To be able to invoke the rights under Article 46, however, a CARICOM national need not only belong to a certain category, for instance that of a university graduate, but also be ‘recognised as such by the competent authorities of the receiving Member States.’: Tomlinson v Attorney General for Trinidad and Tobago38.

However, there is the

possibility that a person could be called to the Bar in a Member State, but the underlying LLB degree is obtained from a university that is not accredited by that Member State. The administrative procedures require that the university be accredited. So, it is possible for the anomalous situation to occur where the attorney’s university qualifications are recognized by the Bar, but not recognized by the authority responsible for issuing the skills certificate.

It is also important to bear in mind the distinction between non-wage earning activities and wage earning employments, since a skills certificate is not required in the cased of the former, and is a mandatory requirement in the latter. It is unnecessary to obtain a skills certificate in order to establish a solo practice or firm. This is a frequently-made mistake by lawyers seeking to establish themselves in private practice in another Member State. The initial entry is made (without any work permit) on production of proof of nationality, return ticket and proof of financial means.

An initial “definite stay” permit of up to six months must be issued by the immigration authorities at the point of entry. The case of Myrie v State of Barbados39 decided by the Caribbean Court of Justice (“CCJ”), exercising its original jurisdiction, established that all CARICOM nationals enjoy, subject to specific exceptions, a right of hassle free entry into all CARICOM Member States. It noted that both the rights of establishment and of the provision of services, including services in

Vincent; Caribbean Community (Movement Of Skilled Nationals) Act, Barbados; Caribbean Community (Free Entry Of Skilled. Nationals) Act 1995, Guyana 37 They would likely not qualify under Article 46 – and would have to resort to the provisions of Articles 32 – 34 and 36 – 37.

38 [2016] CCJ 1 (OJ)at [61] 39 [2013] CCJ 3 (OJ); (2013) 83 WIR 104

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the tourism sector, presume of necessity the right of movement of CARICOM nationals without being obstructed by unreasonable restrictions. An essential element of the right of free movement is entry and stay of a CARICOM national in another Member State hassle free, that is to say, without harassment or the imposition of impediments.

In Tomlinson40, the CCJ said that the 2007 Decision of the Conference of Heads of Government of CARICOM (the 2007 Conference Decision) extended this right of entry for a period of up to six months: “ … As clarified by Myrie, the 2007 Conference Decision conferred upon all CARICOM nationals, the right of entry into the territory of all Member States and the right to remain there for up to six months, subject, inter alia, to the condition that the national is not an ‘undesirable person.’

This right of entry is not contingent on whether the CARICOM national is regarded as ‘skilled’ or not.”

Within that six-month period, it is necessary to provide the competent authority41 with proof of efforts to establish the economic enterprise, including any relevant registration documents or business plans. The competent authority will determine if all requirements to establish the particular business (law practice) have been satisfied. Once all requirements are satisfied, the competent authority will issue a letter of approval to the CARICOM national, copied to the Immigration Department42.

Resolving conflicts between provisions of LPAs and CARICOM Treaty Potential for collision between provisions of LPAs and CARICOM Treaty exist in respect of those CARICOM Member States that are not members of the Commonwealth, in particular Suriname and Haiti.

Section 6(1) of the Jamaica LPA might arguably be in contravention of the

establishment and services provisions of the CARICOM Treaty, since it improperly discriminates

40

Tomlinson (n.26)[2] Defined as “the authority legally authorised to perform a function and for the purpose of Chapter Five means the Minister of Government so designated by a Member State” 42 The Right of Establishment, CARICOM Single Market and Economy (CSME), Caribbean Community Secretariat 2010 41

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against nationals of Haiti43 and Suriname, and is ex facie repugnant to the provisions of Chapter 3. The mere existence of conflicting domestic law, however, is not determinative. In Myrie, the CCJ said: “A violation of Community law is not so much caused by the existence of domestic laws that seemingly contradict it but by whether and how these laws are applied in practice...”44 There is no contravention, and accordingly no right to redress, unless the repugnant provisions have, in fact, been applied to the prejudice or detriment of the claimant.

In any event, this apparent conflict is resolved by the self-executing terms of section 9 of the Caribbean Community Act (Jamaica), which provides45: “In the event of any inconsistency between the provisions of this Act and the operation of any other law, other than the Constitution of Jamaica, the provisions of this Act shall prevail to the extent of the inconsistency.”

In Tomlinson, it was argued by the Claimant, a Jamaican attorney-at-law, who is a homosexual and noted LGBTI rights activist, that he was being prejudiced in the enjoyment of his right as a CARICOM national to enter the States of Belize and Trinidad and Tobago without hassle, due to the respective Immigration Acts of Belize (section 5) and Trinidad and Tobago (section 8) which purportedly include homosexuals as a class of persons prohibited from entering these territories.

While conceding that he had never actually been refused entry on any occasion by either State, the Claimant argued that the mere existence of those statutory provisions prevented him from entering both States since, in so doing, he would be breaking their domestic laws. He accordingly, alleged, among other things, that his right to free movement under Article 45 of the CARICOM Treaty had been contravened. In dismissing the claim, the CCJ held46:

43

Haiti is a signatory to the CARICOM Treaty, but is not entitled to assert or enjoy the rights of establishment or to provide services since it has not declared its readiness to participate in CSME. 44 Myrie (n 27) [80].

45 This provision is replicated in most of the Caribbean Community Acts: e.g. Trinidad and Tobago, s. 8; St. Lucia, s.

7. It is not replicated in the Barbados statute.

46 Op cit at [48]

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“ … The provision in section 847 of the Caribbean Community Act that ‘in the event of any inconsistencies between the provisions of this Act and the operation of any other law, the provisions of this Act shall prevail to the extent of the inconsistency’ is of primary importance.

Whatever may be the effect of section 8 of the Caribbean Community Act on subsequent legislation, where constitutional issues could perhaps arise on the basis of Article 240 of the [CARICOM Treaty], there can be no doubt that prior legislation, such as the Immigration Act, comes within the statutory requirement for application consistent with the [CARICOM Treaty]”.

Any inconsistent provisions of domestic law must, therefore, yield to the provisions of the CARICOM Treaty to the extent that the latter has been declared to be superior law.

Opportunities The CSME has effectively paved the way for lawyers in Member States to practise in multiple jurisdictions. It has cleared many of the legal and socio-political barriers that would otherwise have rendered it difficult or impractical to set up shingles or practise throughout the region. The incentive to broaden one’s legal horizons may be multifarious. Some advantages that readily come to mind include: • • • • • •

providing a hedge against stagnant or recessionary economies oversaturation of lawyers within the domestic market, resulting in fierce competition for sometimes limited work some of the smaller jurisdictions might be legally underserved because of an insufficiency of lawyers clients with a regional presence might consider it advantageous to have some continuity of legal services – e.g. regional banks, insurance companies lawyers with regional clients might wish to leverage those relationships convenient for foreign clients/law firms doing business within the region or having cross border transactions within the region to deal with a single firm or lawyer

Challenges

47

In all respects, identical to section 9 of the Jamaica LPA.

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CSME notwithstanding, there remain several obstacles to the intra-regional practise of law. In the main, these are physical (geographical), psychological and financial. The CARICOM region spans the Caribbean, from the Bahamas in the north to Suriname on the South American continent. Travel from the northern Caribbean to the southern and eastern Caribbean is, therefore, often-times costly and time consuming, with limited options for air travel. Also, although countries within the southern and eastern Caribbean region are situated within close proximity to each other, the cost of intra-regional travel is, nevertheless, relatively expensive, and the airlines servicing the area are not always reliable.

It is also difficult to penetrate a legal market in which the legal practitioner is not well known, or with which the legal practitioner is unfamiliar. Also, while most CARICOM countries share the same Commonwealth background, there are nevertheless nuances in the domestic laws of each country that might present traps for the uninitiated. The inadequate reporting of regional case law and limited and oftentimes unreliable access to up-to-date and complete set of statutes and subsidiary legislation also pose significant hazards for any legal practitioner who chooses to wade beyond the relative safety of his own shores. These risks often create psychological barriers for lawyers to venture outside their comfort zone.

These might be overcome, however, by

partnering or associating with local lawyers, who should have the necessary knowledge and experience within the jurisdiction to navigate the pitfalls of practising there.

Threats The major threat to the region that is posed by cross border practice of law is an external one.

Competition from large global or international law firms could easily devastate the regional market for legal services, since regional firms and sole practitioners would never be able to match their vast and unlimited resources, both financial and human. By leveraging their global reputation, and tapping into their enormous international networks, these global and international firms could effortlessly denude regional practitioners of the larger and more lucrative corporate, financial and capital markets transactions.

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The protectionist provisions of the LPAs, in combination with the domestic immigration laws, serve as significant blockades to the expansion of the global and international firms into the CARICOM region. But these barriers are not impenetrable, and increasingly the global and international firms are circumventing the rules by entering into partnerships or fee sharing arrangements with locally admitted attorneys. A major global firm has recently established a law practise in Barbados; and there are other examples throughout the region of global or international firms that have employed locally qualified attorneys who are roving around the region and representing domestic clients, not in their own names, but in the names of the global or international firms. If the fees or profits that are generated by activities in the region do not belong to the attorney-at-law who is providing the service, but are repatriated to the global or international firm that employs him, then it begs the question whether those firms may be said to be unlawfully practising through the agency of the local lawyers48. These practices might also reasonably raise ethical questions, particularly under any domestic rules or codes governing the legal profession that prohibit fee sharing arrangements with non-lawyers49.

Suggested Reforms The transition to regional cross border practise of law could be better facilitated by reforms aimed at reducing bureaucratic red-tape, removing any lingering barriers to trade in legal services and further strengthening the commitment of the CARICOM countries to the attainment of the objectives of the CSME. These include: •

simplifying the admission process for attorneys at law who qualified under CLE program, which is oftentimes mired in bureaucratic red tape. In St. Lucia, for example, the requirement for the Attorney General to make an order declaring that the proposed applicant is eligible to be admitted to practise law in Saint Lucia, based on

48

Most of the LPAs in the region contain provisions that make it unlawful for any person who is not qualified or entitled to act as an attorney, to act in any respect as an attorney in any action or matter or in any court in the name or through the agency of an attorney entitled to practise.

49 Legal Profession (Canons of Professional Ethics) Rules, Jamaica, Canon IV (a); Legal Profession Code of Ethics: Barbados, rule 65; St. Lucia, rule 9; Trinidad & Tobago, Part B of the Third Schedule to LPA, rule 9.

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•

•

reciprocity50, represents an additional layer of bureaucracy, and significantly protracts the admission process. An attorney-at-law who is admitted in a CARICOM member state, and is good standing, should be able to register in any other Member State by means of a purely administrative process; making provision for pro hac vice51 admissions across the region. The LPAs of Trinidad and Tobago52, The Bahamas and Cayman Islands currently provide for senior or specialist attorneys to be called to their respective bars for single matters or for a limited time period. Under Bahamian law, only a Bahamian national can normally be admitted as a lawyer. However, there is an exception for special admissions (which is subject to the determination of the Bar Council, which must be satisfied that the interests of justice so require) permitting any person that is otherwise qualified in accordance with the First Schedule of the LPA to be specially admitted to practice for the purpose of conducting particular proceedings53. In the Cayman Islands, an application for limited admission may be made under Section 4(1) of the Legal Practitioners Law. The Clerk of Court in Cayman however will not issue a certificate under the section unless he is satisfied that every reasonable effort has been made to obtain the services of an attorney-at-law in the Islands for the person to whom the legal aid certificate has been granted, and that there is no attorney-at-law in the Islands who is willing and able to advise or represent that person under the Legal Aid Law; implementing the reciprocal arrangements that are provided for under LPAs54. This usually requires a Ministerial order declaring reciprocal treatment for foreign lawyers from designated countries. However, very few reciprocity orders have actually been made under the LPAs. This perhaps reflects the policy considerations behind protectionism, and the reluctance of regional governments to open up their domestic markets for legal services to competition from foreign lawyers. By not actively pursuing negotiations with other countries, aimed at entering into reciprocal arrangements that would allow foreign lawyers to practise in the host country and vice versa, regional governments have

50

Section 16. This arguably offends against the provisions of Articles 32 – 34 and 36 – 37 of the CARICOM Treaty.

It is almost certainly discriminatory, in contravention of Articles 7 and 37. Article 7 provides: “Within the scope of application of this Treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality only shall be prohibited” 51 Latin: "for this occasion" or "for this event" – whereby an attorney who has not been admitted to practice in a certain jurisdiction is allowed to participate in a particular case in that jurisdiction without being formally admitted.

52 Section 15A. 53 LPA s. 11 54 Barbados, ss. 6 & 7; Trinidad and Tobago, s. 16; St. Lucia, s. 16

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•

consistently shut the door to foreign lawyers as a deliberate protectionist strategy. It is a double-edged sword, however, since by the same token it limits opportunities for CARICOM lawyers to practise law in foreign countries; and strengthening or, at the very least, consistently enforcing, the provisions of the LPAs or the ethical rules that prevent foreign lawyers or foreign law firms from practising law in the region without being admitted to practise through fee sharing arrangements or through the agency of a local lawyer.

Conclusion Much of the legal barriers to multi-jurisdictional practice within the CARICOM territorial sphere have been removed by the standardization of the legal education qualifications under and by virtue of the Agreement. Immigration hurdles have also been substantially eliminated under CSME, and legal professionals from one CARICOM member countries have the right to provide services or to establish law practices in any of the CARICOM member countries. The real obstacles are largely geographical and psychological. With the advent of technology, the globe is shrinking, and the ability to practice remotely will likely open up new frontiers for legal practitioners who are bold enough to explore them.

Garth Patterson Q.C. is the Regional Managing Partner of Lex Caribbean, a law practice with offices in Barbados, Trinidad and Tobago and Jamaica.

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