The BAS management committee had called for the EGM after copies of the proposed Legal Practitioners Act ("LPA"), re-hashed and amended from an earlier version, were recently circulated by Barry Galvin, an Irish Solicitor contracted by the Government initially to draw up a report for the review of the Seychelles criminal justice system, but who has since stayed on in Seychelles. During the EGM it was revealed by primary sources that Galvin has now been mandated by the Government to push forward with the proposed LPA.
The proposed LPA seeks to revamp not just the legal profession but also the legal environment. Many of the changes which the proposed LPA seeks to implement have actually been raised by members of the Bar previously, but some of the proposals therein are unacceptable to members of the Bar and 1 proposal in particular defies logic and good sense.
In the EGM, the BAS decided to go through the key issues and sought, through debate and argument, to find a unified and common position amongst all the members of the Bar present, so that the BAS and individual members of the Bar, may lobby its views to the Government.
Foreign Qualified Lawyers to Practice Seychelles Law
The proposed LPA seeks to open up the legal profession to foreign lawyers that have qualified in recognized jurisdictions. The proposed LPA lists these recognized jurisdictions, mainly English speaking countries, most notably Ireland and Australia. The proposed LPA will allow lawyers qualified in recognized jurisdictions who have 5 years practice in their particular jurisdiction to be entitled to apply to the Chief Justice of Supreme Court of Seychelles to be admitted as an Attorney in Seychelles to practice Seychelles law. The Chief Justice, at his discretion, could also waive the 2 year pupilage period.
In effect, this law would allow a foreign lawyer, who has no experience in Seychelles law, to start practising Seychelles law without the need to go through pupilage. Currently, one has to obtain a qualifying law degree from a limited number of countries (e.g. UK & Mauritius), and then pass an approved vocational course (e.g. the BVC/LPC from UK), before being eligible to start their 2-year pupilage. As the Seychelles Legal System is unique, the pupilage is seen by many as a neccesary rite of passage for one to be able to come to grips with the unique laws and legal environment of Seychelles. This pupilage is even more important given that Seychelles does not have a university and so there is no place that one can actually learn Seychelles law. The 2-year pupilage period seeks to address this issue.
No other country in the world allows lawyers to simply come into their jurisdiction and then start practising the local laws without taking examinations and/or pupilage. Many members of the Bar are convinced that the people pushing for this particular issue have a personal stake and are only interested in being able to practice Seychelles law without the need to undergo the 2-year pupilage. In fact it had been revealed by several members of the Bar that a foreign law firm that is currently seeking to open an office in Seychelles is seeking to hire local lawyers. Lawyers that were interviewed stated that this big name foreign law firm wants to hire Seychelles lawyers to practice Seychelles law. It is not surprising that this big name law firm is adopting this practice because this is the norm. No self-respecting lawyer would ever want to opine upon or practice the laws of a country that they are not qualified in, even if a legal fiction like the proposed LPA is passed.
After all the issues were thrashed out it was resolved (all in favour except 1) at the EGM that the status quo be maintained and that if anyone wishes to practice the local law then they should qualify as per the current provisions of the LPA. It was also resolved (all in favour except 1) that if the Government goes ahead and tables a bill with the provisions in this area as per the proposed LPA, the BAS and other lawyers would lobby to resrict the favourable terms that the proposed LPA bestows upon foreign lawyers to qualify as Seychelles attorneys (e.g. have the list of recognized jurisdictions reviewed and to eliminate the discretion given to the Chief Justice on waiver of pupilage). It was put to vote whether anyone agreed to the form of the proposed LPA as it, no one at the EGM voted in favour, all were against except for 2 who abstained.
Foreign Lawyers to Set Up Shop in Seychelles to Practice Foreign Law
The proposed LPA also seeks to allow foreign lawyers to set up shop in Seychelles to conduct work in arbitration, consensual dispute resolution, advise upon foreign and international law and provide legal advice on Seychelles law if it is incidental to the laws that they have qualified in.
It was pointed out at the EGM that the definitions section with respect to foreign law was ill thought of as it would allow a lawyer qualified in Ukraine to come to Seychelles and start practicing Singaporean law or any other law for that matter. It was also agreed that the notion of practicing International Law was also quite ill thought of as International Law is not a jurisdiction per se. The notion that a foreign lawyer could opine on Seychelles law if it were incidental to a piece of work involving the laws that they are qualified in was also frowned upon.
Many countries, such as Mauritius and India, have opened up their borders to allow foreign lawyers to set up shop and practice the laws of the foreign jurisdiction that they have qualified in. This is useful where a country's legal entities are heavily involved in cross border transactions. In Seychelles for example, many International Business Companies ("IBC") are involved in cross border transactions. As a result of this, lawyers qualified in other laws governing the agreement and even other parties to the agreement, have to provide their legal opinion with respect to the particular laws in the agreement that concerns them. Invariably, these agreements are governed by English law, as such, it is usually English law firms that set up at other jurisdictions so that their lawyers may opine on the parts of an agreement that is governed by English law. Having the presence of the foreign law firms generally reduces costs to the client.
All of the members of the Bar present at the EGM were in favour of allowing foreign lawyers and law firms to set up shop in Seychelles. It was therefore resolved that foreign lawyers and law firms be allowed to set up shop in Seychelles to practice the laws that they have qualified in only. It was also unanimously resolved that should any foreign lawyer partner with a local lawyer then that foreign lawyer may only practice the laws that they have qualified in.
Composition of the Law Society
The proposed LPA seeks to create a Law Society that would regulate and discipline members of the legal profession. The members of the Bar were in favour of the creation of a statutory body. But members of the Bar expressed concern that the proposed LPA seeks to have a 7-man board of which the Government controls or at least appears to control 4 members. Under the proposed LPA the board would consist of the Attorney General and 3 members nominated by the Minister of Finance. 2 members would be the President of the Society and its Vice-President and 1 other member would be a legal practitioner.
Members of the Bar expressed discontent at how the proposed LPA seeks to have the Government have greater control over the legal professionals and that this would hurt the independence of the Bar. Furthermore, as most of the members of the Bar are academically qualified Barristers of England and Wales, it would be more appropriate for the Law Society to instead be called the Bar Council. It was also noted that the legal domain was generally under the mandate of the Minister of Internal Affairs, presently a department subordinate to the Vice-President and so it is quite odd that the Minister of Finance has been given this power in the proposed LPA.
It was unanimously resolved at the EGM that a Law Society/Bar Council be entirely composed of members of the Bar elected to such positions by members of the Bar only.
Code of Conduct
Presently, there is no code of conduct/ethics that governs Seychelles attorneys. It was resolved that the Management Committee of the BAS draft a Code of Conduct. It was hoped that the Code of Conduct would be circulated to members of the Bar for comments before being submitted to the Government/Chief Justice for implementation as a secondary law.
Indemnity Insurance and Immunity
Presently, there is no requirement for attorneys to have indemnity insurance cover. It was argued that this would be very expensive and would lead to lawyers passing on their costs to clients. It was resolved that indemnity insurance not be compulsory to obtain the legal practitioners licence. It was also resolved that the immunity afforded to lawyers remain as is. Presently, lawyers are immune from suits for any conduct or work done in court or incidental to court work.
Towards the end of the meeting, several lawyers hoped that the Government would consult the members of the Bar on issues that affect them and that the Government consider input from the Bar in drafting the proposed LPA amongst other things.
The BAS promised to lobby the Government with respect to the resolutions made.
The BAS is a voluntary association whose mandate is to promote the interests of the members of the Bar. The Management Committee of the BAS for the year 2009 are: Anthony Derjacques (Chairman), Divino Sabino (Secretary), Joel Camille (Treasurer), Nichole Tirant-Gherardi, Frank Ally, Basil Hoareau, Elvis Chetty, Teresa Micock and Jude Bonte.
The Robing Room is the official blog of the Seychelles Legal Environment Website (www.geocities.com/ptikoy and its new site which is under construction at sites.google.com/site/theseychelleslegalenvironment), the only website about the Seychelles Legal Environment that is constantly updated.