The Bermuda barrister’s responsibility to the legal profession

The Bermuda Barristers’ Code of Professional Conduct is 126 Rules long (more, if one counts the sub-rules). They are all important rules, and critical to the proper functioning of the legal profession, the administration of justice, and the maintenance of the rule of law.

Amongst those Rules are these:

  • 102: A barrister shall encourage public respect for and shall try to improve the administration of justice.
  • 103: A barrister shall assist in maintaining the integrity and reputation of the Profession.
  • 104: A barrister shall report to the Bar Council breaches of this Code which come to his knowledge and which he considers to be serious.
  • 126: A barrister shall observe these rules in the spirit as well as to the letter.
  • 5(b): A barrister must not discriminate directly or indirectly against any person … because of their sexual orientation.
  • 43(viii): A barrister shall not … needlessly abuse, hector, harass or inconvenience a witness. In all cases it is the duty of a barrister to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are an abuse of counsel’s function, and to exercise his own judgment both as to the substance and the form of the questions put or statements made.

With these rules in mind, what is one to do when one reads in the Bermuda law reports (and in the Royal Gazette newspaper) that a senior Crown Counsel in the Attorney-General’s Chambers, Mr Norman MacDonald, has been found by Chief Justice Kawaley to have conducted a trial (involving a litigant in person complaining of psychological injuries caused by the Ministry of Education) in a “stunningly unreasonable” manner?

Of all of the examples of outrageous and unreasonable conduct identified by the Chief Justice (in awarding costs to the Plaintiff on an indemnity basis against the Government), perhaps the most shocking (in light of the rules described above, and in any event) is the fact that Norman MacDonald cross-examined the Plaintiff in a gratuitously offensive (and utterly irrelevant) manner, including by reference to her sexual orientation.

The Chief Justice was himself so shocked by the line of cross-examination that his judgment includes the following observations:

  • I was myself so discombobulated that the Plaintiff denied being a lesbian before I was able to rule the question impermissible on relevance grounds. I consider it to be a notorious fact that most, older black Bermudians have traditional and conservative views on sexual matters and as a result would find having their sexual orientation questioned in a public forum to be deeply embarrassing at best and humiliating at worst“.

It may well be that the Chief Justice’s and the Royal Gazette’s public discussion of Mr. MacDonald’s conduct of the case is sanction in itself, but I pose these questions to all members of the Bermuda Bar (and to the Professional Conduct Committee of the Bar Council, and to the Attorney-General, an ex officio member of the Bar Council):

  1. Can there be any doubt that Chief Justice’s costs ruling establishes a clear and serious breach of Rules 5(b) and 43(viii) of the Code of Conduct (and others referred to above)?
  2. In the circumstances, is it not the duty of all members of the Bermuda Bar to report the matter to the Bar Council (whether or not it is already aware of the case)?
  3. What steps will the Professional Conduct Committee and the Attorney-General take to address the matters set out above?

It may be worth noting, as a footnote, that the unreasonable conduct apparent in this particular case does not appear to be an isolated incident, since there have been a number of other recent judgments from the Supreme Court (including, for example, this case) that have discussed unreasonable conduct on the part of certain lawyers within the Attorney-General’s Chambers, and which have resulted in costs orders being made against the Government.

This should be a matter of concern to all residents and citizens of Bermuda, as well as to the Government and the Bar.

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