Legal Practitioners Bill 2016

Legal Practitioners Bill, 2016 Deals with Establishment of a supervisory body for the profession; Practice of CI law and Admission Articles Law firm – qualified law firm, affiliate, Business Staffing Plans Regulation (including code of conduct) and Discipline of attorneys.

Practice of law defined A person practices CI law if, for expectation of gain or reward: Gives CI legal advice. (Section 24(2)(a)) Appears on behalf of a person in a court, tribunal or inquiry in the Cayman Islands. (Section 24(2)(b)) Prepares an instrument governed by CI law that relates to real, personal or intangible property or legal proceedings. (Section 24(2)(c)). holds the person out as qualified to undertake a function mentioned in Section 24(2) for gain or reward (Section 24(3)).

What is not Practice of law – Section 24 Acting on own behalf Public officer in course of his duties Employee in course of employment other than an employee who is also a lawyer who holds a valid practicing certificate in another jurisdiction Preparing Mem & Arts Director or owner of a company acts on behalf of the company Preparing a will without trust provisions Preparing documents relating to the sale, purchase or lease of land if no mortgage, charge or other security interest over land is involved. Preparing a legally prescribed form or document Preparing a letter or power of attorney Acting in the transfer of share containing no trust or limitation Person undertaking an activity licensed by CIMA Arbitrator or council brought in by an attorney at law to act in arbitration Cabinet can amend this list

Admission Must be a (i) Caymanian, (ii) hold a work permit, (iii) Residency and Employment Rights Certificate, (iv) otherwise entitled under the Immigration Law to reside and work, (v) Gov’t employee, or (vi) resident in another jurisdiction working with a “qualified law firm” (Section 31) Professional Qualification (Section 33) "qualified locally" (Section 33(2)) – obtained educational qualifications and period of articles prescribed by the LAC "foreign qualification" (Section (33(3)) Solicitor in England and Wales or Northern Ireland; BVC plus 12 months pupillage in England, Wales or Northern Ireland; Solicitor in Scotland; Attorney in Jamaica; Entitled to practice law in any court of a jurisdiction prescribed by Cabinet.

PQE Requirement for non-Caymanian attorneys: Admission based on "foreign qualification" (Section 34) In good standing in such jurisdiction Foreign qualification in a jurisdiction recognized under Section 33(3) + 3 year PQE before 1 Jan 2019 4 year PQE after 1 Jan 2019 Pass exam set by the Legal Advisory Council; AND Undertake 4 months Mini Articles under supervision of an attorney with 5 years PQE, 3 years as Cayman attorney.

Practicing Certificate must not practice Cayman law, whether in the Islands or in another jurisdicition without a practicing certificate (Section 49(1)). Govt attorney (Certified as such by the Attorney General) deemed to be holder of a practicing certificate (Section 49(2). Practice of CI law in another jurisdiction only with a qualified law firm or an affiliate of a qualified law firm – (Section 67) CI$100,000 fine and/or 2 years imprisonment for practice of CI Law without a valid practicing certificate (Section 24(1))

Regulation of law firms law firm defined (Section 3(3)) solo practitioners partnership or limited liability partnership Qualified law firm and affiliates Law company (Section 55) All firms to be licensed by the Court + pay annual operating fee (Section 70(3)). Annual operating fee = same as the current fee until changed No licence fee will be payable at present for small firms and sole practitioners, LCCL does not apply to law company (Section 71)

Practice of cayman islands law overseas to be permitted "qualified law firm" – Section 3(1) Min of 1 Caymanian attorney + "voting control" held by (i) one or more Caymanian attorneys and (ii) one or more attorneys who are "legally and ordinarily resident" in the Islands. "affiliate" – Section 3(2) Office engaged in practice of Cayman law in another jurisdiction Should be: Trading under a name that is similar to, or a derivative of, the name of the qualified law firm OR Engaged in practice of Cayman Islands law in another jurisdiction that is held out as being associated with the qualified law firm Composition: voting control held by (i) one or more Caymanian attorneys and (ii) one or more attorneys who are "legally and ordinarily resident" in the Islands Veto appointment of promotion of an attorney in that Office by those listed in (b) above

Protective provisions "legally and ordinarily resident" – defined (Section 3(4)) Islands the person's principal place of business; Person has right to engage in employment in the Islands; AND Has been physically present 183 days on Islands (barring absences for medical treatment).   "voting control" – defined (Section 3(5)) Holding directly or indirectly or through an intermediary entity a majority of the voting interests in the firm or "office". "Office" (Section 3(5)) means branch of qualified law firm or a separate legal entity. "partner" (Section 2) means a person who has entered into a partnership in accordance with the Partnership Law (2013 Revision). "partnership" (Section 2) has the same meaning as that construed in accordance with section 3 of the Partnership Law (2013 Revision).

Limits on Practicing Certificates qualified law firm must not permit non-Caymanian attorneys to practice Cayman law in another jurisdiction if A > B + C + D: A = # of Non-Caymanian attorneys in another jurisdiction with the Qualified law firm and any Affiliates B = # of Caymanian attorneys worldwide with the Qualified law firm and any Affiliates C = # of Non-Caymanian attorneys in Cayman with the Qualified law firm and any Affiliates in the Islands. D = # trainee attorneys with the Qualified law firm and any Affiliates. (Section 68) Council can approve variation in case of exceptional circumstances and must publish details of approval within 2 weeks (Section 68(2)) Qualified law firm must file certificate each year certifying compliance (Section 69(1)). Managers of Qualified law firm must ensure that the certificate is not false or misleading If in breach, following recommendation of Council Clerk may suspend practicing certificates of attorneys practicing in relevant affiliate who are non-Caymanian

Business Staffing Plan Required if law firm applies for a work permit or employ an attorney in another jurisdiction (section 73) BSP in compliance with the Immigration Law, the LPL and any rules made by the Council (Section 74) BSP must: make reasonable provision to give Caymanians access to legal profession, including training and development and equitable progression within the law firm (Section 76(2)) contain details of how the firm intends to comply with the Best Practice Guidelines in Part 2 Schedule 2 (Section 76(3)) contain a provision that if an attorney who is not Caymanian is proposed as a partner but is denied a work permit, the law firm will not for a period of 2 years apply for a practicing certificate to allow such attorney to practice Cayman law as a partner in an affiliate of the law firm (Section 76(4)

Business Staffing Plan – Promotion or re-desigation Non-Caymanian attorney cannot be promoted or re-designated or appointed as a partner without providing the BSP Board a declaration regarding the effect such promotion or re-designation or appointment would have on the opportunity for advancement to that level of Caymanian attorneys within the law firm who may have qualifications to advance to that level (Section 76(5))

Business Staffing Plan – How is this policed? It is an offence under Section 104(1) of the Immigration Law (2015 Revision) to file a misleading BSP In the case of R v. McCafferty (Grand Ct.: Schofield, J.) February 25th 1994, 1994-95 CILR) it was held that the Caymanian Protection Board is a judicial authority. Accordingly, it can be argued that the Business Staffing Plan Board is also a "Judicial Authority". An attorney-at-law is an officer of the Court (Section 37). Offence under LPL attributable to any willful neglect on the part of director, partner, member of firm, such person liable as principal offender. The Bill provides that an attorney shall comply with the obligations imposed under the Law and failure to do so may be subject to disciplinary proceedings. (Section 38(2),(3)). A law firm is required to observe the “law firm best practice guidelines (Section38(4))

Cayman Islands Legal Practitioners Association The profession to be a self-regulating professional body. CILPA Council comprised of 8 Attorneys: Residency: all council members must be resident in Cayman Smaller Firm Representation: at least 2 from law firms with less than 10 attorneys No Dominant Firm: no more than 2 from same law firm Caymanian Representation: at least 5 Caymanians of which at least 3 ‘qualified locally’. Responsibilities of Council – Section 13(2) includes "Promote the qualification, training and development of Caymanians as attorneys (Section 13(2)(e))"

Legal Advisory Council LAC to remain in place Consist of Chief Justice, Attorney General, 2 attorneys in private practice (one of whom is Caymanian) and Director of the Law School (Section 78) LAC to deal with legal education and Articles leading to local qualification. (Section 79)

Professional Conduct Committee. Professional Conduct Committee (PCC) comprised of 5 members appointed by the Council (section 94(1)) 2 members of Council 2 attorneys who are not members of the Council a non-attorney approved by the AG At least 3 members must be Caymanian (Section 94(2)) Complaint procedure: A person or Council may file a complaint with the PCC in respect of an attorney or law company for professional misconduct (Section 95(1)) PCC shall investigate complaints made (Section 96(1))

Disciplinary Tribunal Complaint determined by PCC as "serious professional misconduct" (defined under Section 97(2)) referred to Disciplinary Tribunal Disciplinary Tribunal consists of CJ and 2 attorneys nominated by Council (at least one of whom is Caymanian) Council must publish name of attorney or law company and details of the order if order made under section 100(2) or 101(2) (Section 103) Attorney may appeal to the Court of Appeal (Section 111(2)).

Code of Conduct - mandatory. This will allow recognition by UK SRA Practitioners only admitted in Cayman to become eligible for admission in England & Wales Attorney must observe the Code of Conduct set out in Schedule 2 Part 1 (Section 38) law firm observe Best Practice Guidelines in Schedule 2 Part 2 (Section 38(4). Failure to comply amounts to professional misconduct and may be subject to disciplinary proceedings.

Penalties for Offenses under the LPL. If practice Cayman law in Cayman or in another jurisdiction without a practicing certificate, fine not exceeding $50k (Section 115(1)) Offence under LPL attributable to any willful neglect on the part of director, partner, member of firm, such person liable as principal offender (Section 116). The Bill provides that an attorney shall comply with the obligations imposed under the Law and failure to do so may be subject to disciplinary proceedings. (Section 38(2),(3)).

Law Firm Best Practice Guidelines Part 2 of Schedule 2. Adapted from IBA best practice guidelines which include: Recruitment and retention Training and Development Performance Management Remuneration and benefits Dealing with problems Career development

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