What next for Legal Services Act?
‘Lawyer’ writes: The Legal Services Act, 2020 was published with Legislation Gazette No. 1 dated 7 January 2021, replacing the Legal Practitioners Act (2015 Revision) and providing a comprehensive legal framework to enhance the reputation of the Cayman Islands and ensure that local law is only practised by qualified, regulated and accountable lawyers. The Cabinet now has the task of passing an order to publicly state the date when the Act will come into effect.
At first glance, the reasons for bringing the Act into force seem clear as a bell. In my best mother tongue accent, “elementary” (maybe even “clever”). However, when a comprehensive assessment is done, it is apparent that a substantial understanding of the implications is first required before the next steps can be taken by Cabinet. This is vital, as such actions may either secure futures or destroy livelihoods, depending on where your meal is served in the financial services trough.
Overseas trough
First, there is a domestic trough and overseas trough. That is, persons benefit from the practice of Cayman Islands law both within the Cayman Islands and outside the Cayman Islands. This is the case whether or not they are connected to a law firm based in the Cayman Islands.
Regarding this, the Act settles decades-old interpretations about what is the practice of Cayman Islands law, who can practice Cayman Islands law and the structure within which they can practice.
The loss of licence fees to the government treasury versus the (arguably) hundreds of millions of dollars made by firms that have practiced Cayman Islands law overseas for decades is also noteworthy.
Legal practice certificates
In practicing Cayman Islands law overseas, some persons do not possess a Cayman Islands legal practice certificate issued by the courts of the Cayman Islands. Having been involved in transactions with the relevant persons overseas and having checked the relevant register in the courts of the Cayman Islands, this can be confirmed as a fact.
The Act, however, neither considers the implications of persons previously practicing Cayman Islands law overseas without a Cayman Islands legal practice certificate nor penalises persons actually known or reported to the authorities for doing so. Having turned a blind-eye to the issue, the Act purports to authorise the issue of Cayman Islands legal practice certificates to persons overseas who are currently practicing Cayman Islands law but who have never previously held a Cayman Islands legal practice certificate.
The regulation of legal practice
As to who will now regulate the practice of Cayman Islands law, the Act contemplates the establishment of the Cayman Islands Legal Services Council. In addition, the Council will be charged with upholding of the rule of law, the supervision of legal education and practical legal training leading to local qualification for admission as an attorney-at-law, the promotion of high standards of professional conduct by attorneys-at-law and the carrying out of the function of anti-money laundering regulator or supervisor for lawyers.
In some quarters, the composition of the Council has come under fire. Where a machine gun approach has been used, many objections have been made to the inclusion of the chief justice, the attorney general and political appointments to be personally made by the premier and the leader of the opposition. Almost all of these contemplated appointments have been deemed inappropriate by those with the best interests of the profession at heart.
The reasons for the objections, as you can imagine, are neither remarkable nor outstanding. They are suggestions to incorporate other persons or introduce another mechanism to improve independence of the Council, to remove political influence, minimise conflicts of interest and improve overall governance of the Council.
Notwithstanding the obvious threats to governance, there are some who simply wish to put the Act in force and attempt to manage the risks later, hopefully before any damage is done.
The proposed carrying out by the Council of the function of anti-money laundering regulator or supervisor for lawyers also borders on a dangerous curve. This is especially the case since there are questions regarding the composition of the Council and threats to good governance.
The alternative that some have suggested is that the Cayman Islands Monetary Authority (CIMA) should be appointed as anti-money laundering regulator or supervisor for lawyers. This is because CIMA is independent and will not hesitate to fine or effectively enforce anti-money laundering or anti-terrorist financing legislation and regulations as they relate to lawyers.
The appointment of CIMA would also satisfy the requirement of the Caribbean Financial Action Task Force (CFATF) to name a supervisory authority for lawyers following the CFATF’s evaluation of the Cayman Islands during their December 2017 on-site visit to analyse the level of effectiveness of the Cayman Islands’ anti-money laundering or counter-terrorist financing systems.
CIMA also makes sense as it is an established body with years of experience regulating relevant financial business sectors and has anti-money laundering professionals working on its regulatory teams.
Other provisions
There are many other provisions of the Act that are the subject of much debate. But of special note is how the future “Caymanianisation” of law firms is contemplated.
In the case of a law firm that is an attorney-at-law practicing Cayman Islands law in the Cayman Islands as a sole practitioner, the Act contemplates that that attorney-at-law must be a Caymanian.
However, in the case of a law firm that is a recognised law entity, the Act states that at least one member or partner of the recognised law entity shall be an attorney-at-law who is a Caymanian. Where the law firm is large, the arrangement to have only one Caymanian partner is significantly troubling.
This is disturbing because some law firms may only do the minimum required by legislation, in this case having only one Caymanian partner. Instead, the Act should be amended to state that the number of Caymanian partners required will be based on the size of the law firm.
That is, it should be done on a tiered basis so that, as the number of attorneys increases, the requirement for the number of Caymanian partners increases. Such an amendment would address any future unlevel playing field which may develop as it relates to promotion as well as the economic benefits to be attributed to and earned by Caymanians.
Next steps
The next steps will unveil what interests the Cabinet will consider before bringing the Act into force. Undoubtedly, domestic and international pressures will have an influence and will also be at play. In the end, the final action chosen will be a defining moment for the Cabinet, one that will either reflect a touted ‘Caymanian first’ policy or one that will put Caymanians in a disadvantageous position further down the trough.
- Fascinated
- Happy
- Sad
- Angry
- Bored
- Afraid
Perhaps CILPA could look at the Legal Services Act 2007 in the UK, recognise Legal Executives and give them practice rights. The CILEx lawyer qualification used to be taught at UCCI (until they sadly replaced it with a home-grown version). There are many Caymanian-qualified CILEx secretaries and paralegals who could go on to qualify as Legal Executives if it weren’t for this bar. Opening routes to qualify and practice as legal executives would open up opportunities for local candidates, improve access to justice and go some way towards addressing shortfall of legal aid practitioners. I’ve only been saying this for the last decade or so. Perhaps if we’re really going to refresh the law, we could look a little further outside the box by providing more opportunities for Caymanians to get into law – one that doesn’t require expensive scholarships and university fees, and enables them to learn and work at the same time, sponsored by their employers.
No it is because Banks have strict risk controls that do not allow the Bank to instruct sole practitioners due to the risk involved (ie who handles the Banks’ work when sole practitioner is not there, insurance coverage etc). The Banks insurers will not cover them for certain risks unless they use a law firm on their panel, which is usually a mid to large firm with a high level of professional indemnity insurance. Exceptions might be made for local advice like immigration or employment. You will not see any race of sole proprietor representing a Bank in a big case.
Not all lawyers in Cayman are millionaires. There are several small firms and sole attorneys who provide services to clients who are also not millionaires. Their fees are reasonable because their overheads are reasonable. However with increased regulation and risk they are facing increased costs that will essentially put them out of business. They do not make enough to afford to outsource the compliance, etc. and they cannot raise the rates as their clients won’t be able to afford them. As usual, its the middle class and lower class who has to suffer for the rich to get richer.
This is absolutely correct and this is what is happening to every legal practice right now that isn’t one you can name off the top of your head or at most with a glance at the legal directory rankings.
“Their fees are reasonable because their overheads are reasonable.” LOL. “they cannot raise the rates as their clients won’t be able to afford them”; that’s more like it.
I remember listening to a high-profile local lawyer speaking on the radio – a guy whose practise is mainly crime and civil disputes.
He was explaining that the only reason why he, a sole practitioner, did not get instructed by banks on billion dollar cases, was simply racism.
I just don’t understand why the lawyers cannot get their act together like the accountants.
Come on guys we are in the 2021. It’s time.
I know it’s hard when you are making a $1m a year minimum to think about sharing some of that wealth with the people of the island that made you rich beyond imagination but you got to do it.
You mean like
– running and promoting the jurisdiction and an industry that funds the bulk of the government’s budget?
– paying sizable work permit fees?
– running scholarships for Caymanians?
– making charitable donations and sponsoring local events and groups?
– spending money on Island and paying a variety of levies and taxes?
Is that what you mean by contributing?
No, we mean giving us what the Scott brothers got – talent recognised and developed and achievement attained.
Talented Caymanian’s with the requisite experience and education are in incredibly high demand. No need for anyone to “give” them anything.
The point is that the accounting profession has figured out how to make equity partners out of Caymanians and law has not and does not even care to try because the rewards are supposed to go to other expats. EY will proudly tell you that they work hard to develop Caymanians up to the very top – Dan Scott is Regional Managing Partner. I guarantee you, he didn’t know how to get there the day he arrived, because that’s just not how life works. You learn as you go, face your fears and see how far your talents and hard work take you. The problem we have is that if you are an accountant, those talents and that hard work can take you to the very top, but if you are a lawyer, they won’t – unless you’re an expat. They’ll get you so far and no further if you are Caymanian. That is a problem the industry has to solve or it will be solved for us – already partially has been. Perhaps you weren’t on the call when CILPA told us that the Government decided we were too much of a dumpster fire to regulate ourselves yet.
I’m neither accountant or lawyer but a client of both. IMO in any given population there are more graduates with the ability to succeed as accountants than lawyers.
Bullshit. Stood in that falsehood first hand. Watched Officers of the Court lie to regulators in the process.
There is a simple reality here.
Either you can have:
(a) a legal profession that meets the highest global standards in terms of responsiveness, quality of service, and geographical reach, which then continues to contribute a very sizeable sum to the public purse (and thus puts money into the pockets and provides essential services to Caymanians), or
(b) a legal profession that is driven by a Caymanian first approach, that sees the practice of Cayman law anywhere else in the world as a negative (regardless of whether or not the practitioners have practicing certificates), and that slowly diminishes in relevance.
There are simply not enough Caymanians with the educational and professional backgrounds or talent to have both – not because Caymanians are less able than any other nationality, but because they are not innately MORE able. It is just not possible to have 600, 700, 800+ Caymanian lawyers that meet the necessary standards given the population size.
While many don’t want to believe it, given the extremely high costs of work permits, and the risk that foreign recruits will decide to leave the Islands after being trained up, Caymanians that have the necessary CVs are in EXTREMELY high demand – there is no real “anti-Caymanian” sentiment for a Cambridge educated, London trained local.
In addition, clients in Asia or London want counsel in their timezone. Is the solution to tell them no? Go use the BVI?
And if anyone is wondering what a protectionist nationalistic approach to the legal profession would look like, we don’t need hypotheticals – just turn your eye to the Bahamas.
Listen, nowhere else in the world do you have to be the best in the world to get a job in your country, not even as a lawyer. Plenty of lousy lawyers in other countries – they go to average schools, work at small firms and earn decent livings. They never had to be ‘potentially world class’ to get basic training to achieve full qualification. I am also a lawyer, but I am a Caymanian lawyer, and this business you guys tell yourselves is laughable. If your crowd was ‘world class’ you’d all be working in the cities you started your careers in. You’re not – you’re offshore world class just like you’re offshore magic circle and offshore everything else. I stopped reading your comment at the beginning and I’m not even sorry – I’m not reading again about how the industry will collapse if every Brit, Aussie and Kiwi is not allowed to refer friends and former colleagues for hiring and get paid for it, which systematically excludes everyone else.
And lots of legal systems in the world are mediocre and do not seek to portray themselves as global financial centers. If you genuinely thing that the Cayman population is capable of supplying sufficient legal talent for the jurisdiction to do so, then you’re either misinformed, or have a vested interest in coming to a different conclusion. I suspect the latter.
And the notion that everyone is here because they couldn’t make it onshore is idiotic. There are plenty of great reasons to be here even if you have the innate talent to work in the top firms in London / NY / HK.
Or do you think so little of the Cayman Islands that it can only be classed as a place where people come when they have no other choice?
I recognise that the standard distribution of the traits required for high performance in a legal career will not be found in sufficient quantity within the native population of the Cayman Islands. If I told you how many native Caymanians have practising certificates out of the almost 900 attorneys we now have, even you would be surprised at how marginalised we are. I also think that is no excuse for firms of the kind I suspect you work at denying to Caymanians the same training they got when they were green as grass. Training and opportunities obtained onshore are not given to those starting their careers offshore – this is then used to prevent advancement. This is why the Act now mandates involvement in business development and the right to apply for partnership for Caymanians provided certain criteria as to PQE and tenure with the current firm are met.
If the notion that the people here could not make it onshore is laughable, why are they here? You speak as if I have not heard firsthand from dozens of attorneys how they ended up with an offshore career – they sought it out. They weren’t sure how far they could get in London. They’d had some bad luck and needed a change. Not one person said ‘well it was time to start a family and I like the sun’. Not one person said ‘well I wasn’t paid enough after taxes’. There was always a story and it usually included people onshore saying ‘you’re making a mistake’. Cayman was an elephant’s graveyard for onshore lawyers until very recently. The reasons for the change are complex and I’m not laying them all out here but one of them is that the hiring standard has gone through the roof – you do not need to have worked at Slaughters to practise Cayman Islands law. You can’t hire people who know nothing about our legal system or laws and tell them ‘oh it’s a doddle, just get your flight out here’ and turn around and tell Caymanians it’s all far too complicated for us. Which is it?
I think the world of the Cayman Islands. I love our profession. And if I said any more than that about myself, I would identify myself. Just trust that you are not talking to an uninformed simpleton. I know the history of the industry here better than most people practising in it now.
I think you have a rose coloured view of what it is like for expat lawyers.
Very very few senior associates (and indeed, in some cases what some firms call “partners”) participate in BD in any meaningful way. We can discuss whether that’s a good idea, but it’s not unique to Caymanians.
No one really “applies” for partnership. If you are collegiate, hard working, good at your job, good at business and practice management, and above all, lucky (right time right place) then you will have a good shot. Again, this isn’t a Caymanian or not thing. Do you know how many embittered expats feel they have been hard done by / passed over? I can assure you it’s the majority of the industry.
Again, you think most successful expat lawyers are here because they were not good enough for the UK. While that may have applied to some persons years back, look through the CVs of those doing well and at senior levels in the major firms. It is simply not accurate or current.
Personally, I am happy to put my credentials up against pretty much anyone onshore, but I love these Islands, and frankly think that it’s a far better option to be here. It isn’t anything to do with “failing out” of the “big time”.
I also never accused you of being a simpleton (or even implied it). I am simply stating what I see as a reality. When hiring, in my experience, firms would, on average, prefer Caymanians, but will pick people ultimately on the comparative quality of their CV.
Frankly, more Caymanians would benefit from doing their training elsewhere and then returning (which is something we are seeing more and more often). Mark my words – in 10 years time, they will be the ones disproportionately succeeding.
Again, I agree with most of what you have said.
Yes, BD is a bitter battleground for everyone, and it bottlenecks the path to partnership no matter who you are.
Yes, you don’t really apply for partnership. You’re either on the track or you aren’t (or at Maples, you’re either asked or you aren’t), and a legal right to ask the firm to consider you isn’t going to change the answer. But if firms want to continue their current practices, they are going to have to work harder to maintain them, and might find it easier to relax them a bit instead. The new regime will be audited and if firms are not cooperating and/or results are not changing, I do not think our current pro-Caymanian government will hesitate to go further.
I also acknowledge that times have changed – I did in my last comment where I said Cayman is not an elephant’s graveyard anymore. Cayman has always hired the best it can get – which in the past was not great. That has changed, yes, but that has had negative consequences – the greasy pole is now greasier with more people trying to climb it. Caymanians have no chance, because as you pointed out, the expats with their generally superior qualifications and onshore contacts are already fighting each other. I understand all of that, but you don’t seem to think it’s a problem that these dynamics give Caymanians a glass ceiling expats don’t have – I do think it’s a problem and I’m in very good company.
You did imply that I was a simpleton, with respect. Some quotes from your comment:
‘If you genuinely think’ – so I’m either disingenuous or naive
‘You’re either misinformed or have a vested interest’ – again, must be something, one of the two
‘Idiotic’ – speaks for itself
Finally, suggesting that my comment betrays scorn for my country, to which I was oblivious. But never mind.
We come to the nub of the problem at the end: if Caymanians are to do their training onshore, they need to be told before they leave for university that from Day 1 they need to be comparing vacation schemes and training contracts and pupillages and deciding between the LPC and BPC and reading the financial and legal news regularly and firing off applications and seeking advice from people and attending events and on and on and on. These instructions don’t fall out of palm trees. When I started law school in London, I just looked on in bewilderment at the students huddled together in the cafeterias planning their careers with highlighters (it looked ridiculous) and wondered why they weren’t off enjoying being young hip students in a thriving metropolis. At my local high school we were the first year group to get any university application coaching/help at all, let alone professional career guidance (non-existent and probably still is unless they bring in external mentors), so I was not equipped to steer myself towards an onshore training. By the time I wanted to stay onshore, too many sequential steps had not been taken, the necessity of which I was completely unaware, because the original plan was to come home. We have something of a culture of that – go out into the world, bring something back (doesn’t have to be much) but invest it into the community that raised you. Caymanians training onshore takes change that starts in local high schools – it’s not that we can’t see that onshore training would do much to level the playing field for those able to achieve it (which is going to be a minority in any event).
The ones disproportionately succeeding now are first-generation Caymanians born to expats who gained status and gave their children endless advantages Caymanian children generally did not have – the right accent, the right schools, the right manners, the hidden rules of the game etc. You see these newly minted attorneys in press releases all the time. THEIR children will be the ones attending CIS, getting into Oxbridge, training in London, and taking all the top jobs back in Cayman. You’re right, that will happen, and firms will use the fact that these people are technically Caymanian to say that they stopped discriminating a long time ago and all they were ever asking for was onshore training. That will not be Caymanian success in any way that matters to us – that will be Caymanian* success – but that’s a lost cause already.
“Not one person said ‘well it was time to start a family and I like the sun’. Not one person said ‘well I wasn’t paid enough after taxes’.” Then you really don’t know the people in your industry as well as you think you do.
Not true.
To work in PE in London, you generally need to be one of the best (statistically speaking) in that industry in the world.
To work in IB in New York, you need to be among the top in the world in that industry.
Essentially, if your industry is aiming to be part of a global financial hub, you (surprise surprise) end up with GLOBAL standards.
Nothing stopping you meeting those standards, and dragging them down simply to benefit you as an individual will harm the entire country in the long run. It’s actually quite selfish.
You are conflating two separate issues: access to the profession for locals, and the needs of the most elite firms. My point is that everywhere in the world – including here – quality varies from professional to professional. I accept that the best firms need the best people to service the best clients. But those same firms are the ones that are big enough to provide quality training programmes, and that is the rub. I trained at a firm that promised me the world and then stuck me at a desk while they figured out their mess of a business. Only the biggest firms actually care about training, and you can’t get into them unless you get a scholarship in school (which you might not need or be in a position to seek for reasons other than your school marks). So nothing stopping me – I’m afraid I must disagree. Also, equality doesn’t have to be achieved by lowering the benchmark, it can also be achieved by raising those below the benchmark up to it. It’s actually quite selfish that doesn’t happen. I was told as much during my training. ‘I came to make money and because I was tired of moving firms in London. I’m here on a mission. Why would I take billable time to train you? Why would I? Think about it.’ And this is what we actually see happening here – nest-feathering, nepotism etc. while Caymanian careers fizzle out.
I can’t comment on your specific experience, but I agree that there should be real effort and resources out into training – if for now other reason than because it makes good business sense.
However, I’d also note that it’s a struggle to get that done in every firm I’ve worked at, both here and abroad. Individuals are always marked more on their personal hours than things that are harder to measure.
LOL. “Plenty of lousy lawyers in other countries – they go to average schools, work at small firms and earn decent livings.”! It’s so unfair!
Hundreds of persons with Cayman practicing certificates are available to practice law wherever they are needed. I was one and volunteered for overseas postings every year for more than a decade. Every year the firm refused. Every year they put unqualified persons in those positions, in breach of law, both in Cayman and overseas.
1. Having a practicing certificate does not mean you are qualified for a position. I wonder if you take the same approach to your medical care? Ignore their experience, their training, their talent, their education – if they have a certificate, that’s good enough is it?
2. Please cite the statutory provision that makes it an offence to practice Cayman law outside the Cayman Islands and explain how that provision should be read as having extra-territorial effect.
3. I very much doubt you are aware of law firms on Island appointing attorneys who are not entitled to practice here.
I’m honestly stunned how many seem to think that having a law degree of any sort means that you are on equal footing in the marketplace with someone who got a First from Cambridge and then spent 5-6 years training at a top firm in London (working 70-80 hour weeks). The delusion is strong.
Having a Cayman Practicing Certificate makes you more qualified to practice Cayman Law than someone who does not have one. Every single time. Without fail, and without exception.
You want to practice Cayman Law? Get a practicing certificate!
There’s a distinction between necessary and sufficient.
What nonsense. The Act is just there to charge higher fees by restricting market access. It has nothing to do with quality.
How so?
A thousand thumbs up. Everyone in the industry understands the pressure CIMA is under internationally. And the vast majority of corporate services providers and lawyers are all working toward the same goal and want to eliminate money laundering and enhance the reputation of the jurisdiction. There is no reason for CIMA to treat industry as the enemy and fail to publish clear guidelines as to their expectations. If they were able to do that, industry would be able to comply and then they would be justified in bringing down the hammer on those who fail to do so.
You understand that the unqualified practice of Cayman Law is an offense, and the money so generated is arguably the proceeds of crime?
Two different issues. The overseas practices of the big firms should be managed, so that, at minimum, the firms are required to have people on the ground here, Caymanians and expats who contribute to the local economy in some reasonable proportion to the number of overseas lawyers. Secondly, those firms should be required to pay substantial fees to the government for each person in a foreign office holding themselves out as a Cayman lawyer. I’d say they should come here and get qualified but that’s just a ceremony anyway. It’s not as though local attorneys are required to write bar exams.
I am a local attorney and I was required to study for a year and pass local bar exams (in addition to articles). In consequence I have a good understanding of local laws. Unfortunately I am in a minority in my own profession when it comes to many aspects of local laws, and this often causes conflict.
I otherwise agree with you.
Understood. I’m just pointing out that there are no standards for expats who are admitted here so would be a stretch to expect local training for lawyers in foreign offices. Would be good if they had it, obviously. At least people on the ground here have the benefit of the knowledge and experience of local lawyers.
It’s a difficult balancing act between milking all you can politically and financially from the profession versus driving them away completely to one of the other jurisdictions that would welcome them with open arms. It’s goose for dinner or golden eggs for life.
Difficult to follow the law that governs your profession?
Can you point us to the legislative provision that is currently being breached by members of the legal profession based in the Cayman Islands?
The Legal Practitioners Act. The requirement for all persons practicing Cayman Law to hold a current practicing certificate.
S. 10. Legal Practitioners Act. Only been the case for 40 years.
And please explain to me how that should be read as having an extra-territorial effect, contrary to normal canons of statutory interpretation and contrary to the approach for almost all other Cayman laws?
Same way a Cayman lawyer cannot be an English Solicitor. In fact, even an English Solicitor cannot be an English Solicitor if they let their practicing certificate lapse.
In England, yes. English statute does NOT make it a criminal offense to offer English legal advice in another jurisdiction.
And yet multiple English Solicitors in Cayman have been threatened with sanction by their regulator and are now required to include the words “now non practicing” on their website bios. Check it for yourself.
Regulator.
Criminal sanction.
If you can’t understand the distinction, I can only pray you are not a practicing member of the legal profession.
Do you deny the Chief Justice is your regulator? Ask him whether you need a practicing certificate to hold yourself out as a Cayman lawyer.
Genuinely, you are either unable to understand the point, or are deliberately being obtuse.
Either way, I repeat my hope that you aren’t representing anyone as a lawyer.
Window dressing…
Most of this industry has less credibility than their Business Staffing Plans. Everything from who owns firms to who does what and where is too often a scam. And don’t even bother to ask who the “partners” are. The answer given to some regulators is a lie.
With the ongoing unlawful practice of Cayman Law around the world by possibly hundreds of unqualified persons, is it fair to conclude that regulators, may actually be facilitating the commission of offenses? They sure as hell do not appear to be doing anything to curtail it, and cannot pretend that it is not happening or they do not know who is behind it. Officers of the Court? Members of a Noble and Honorable Profession? WTF? Enough already!
Everyone is worried about the big firms with few Caymanians. Speaking as a client, I can tell you that birthrights mean nothing to a client. The local qualification is not enough by itself. Expensive gold jewelry does not impress. What we need to see are qualifications like a top shelf degree, an admission to an Inn of Court, a QC qualification, experience in London or New York, and the like. Can’t really get there without leaving the island but that’s what it takes to acquire the clients who make a firm big. On the bright side you can now do personal injury work on contingency. Need to open the place up for big billboards.
Yes. Overseas qualifications are much better. They facilitate breaches of our laws. Good to be able to claim ignorance as the excuse for criminal conduct.
You lost me quite early in your viewpoint as I have no knowledge or experience in the subject matter, but after I have had a few drinks I will return to give my considered opinion, as will many others with similar circumstances, who perhaps don’t even bother to partake in strong drink.
Then perhaps no comment is the best comment from you.
PACT must address the failed Legal Services Act rushed thorough parliament by the previous government and amend this legislation.
Please send them your revisions and copy me. Thanks.
PACT could not think their way out of a wet paper bag.
What changes are you proposing that would be beneficial for the industry as a whole and thus the major cash cow for the government?
When the PPM led UNITY government led my Alden McLaughlin passed the Act it made a mockery of the current situation and created a self regulating monster called CARA that is not fit for purpose and driven by the big firms. It was a tool created for employ certain colleagues which paid them handsomely using government funds yet lacked objectivity, whilst controlled by the larger global firms that see nothing wrong with attorneys aboard that are not licensed in the Cayman Islands to practice Cayman law. CARA and these firms are riddled with conflicts of interests. Look at how CARA was formed and the corporate minute book for the evidence. CIMA are best placed, if given the resources to regulate the AML oversight functions which scares the large firms as it will level the playing field.
Lol, CIMA has never enforced anything that was not handed them on a plate by the UK or US.
Anyone who objects to the practice of Cayman law overseas, and particularly in Asia, doesn’t understand the industry and/or has a vested personal interest in the issue that runs contrary to the industry as a whole.
People forget that Cayman is competing with multiple other jurisdictions for global business and simply stopping or materially hampering the practice of Cayman law elsewhere will gradually reduce the relevance of the jurisdiction.
Ultimately, the proposed legislation’s requirement of a 1:1 ratio is a serious and substantial measure and one that balances competing interests well. It also ensures increased government revenue.
Those that complain about “big” firms miss the point. It is those firms that have helped put Cayman on the map as a financial services center, it is those firms that employ most Caymanians, it is those firms that contribute more to the public purse and it is those firms that have a better idea of what the industry needs on the global stage.
We’re all for the little guy, but the notion that a handful of smaller practitioners should be able to outshout the vast majority of the industry is not sensible and is contrary to the interests of the Islands in the long run.
Anyone who practices Cayman law overseas, particularly in Asia, without a Cayman practicing certificate, is committing an offense and is likely a money launderer.
The act puts in place a regime to regulate that aspect.
“Most likely a money launderer” – good lord. Get a grip.
Our proceeds of crime regime is an “all offenses” system. Whether you trade without a license, or sell cocaine, the result is the same. Your money is the proceeds of crime.
I hope you’re not a member of my profession, because you’re irremediably stupid
No, they aren’t. Why is it so difficult to understand that Cayman Islands laws apply in the Cayman Islands, not worldwide?
For exactly the same reason that a Caymanian Lawyer cannot practice English Law in Cayman, and an English Lawyer cannot practice Australian Law in England. Each has to be admitted to practice the respective jurisdictions’ laws.
You know it’s NOT a criminal offence in England to practice English law in say, Jakarta right? That you’re undermining your own point? That, unless the contrary is clearly stated, statutes are interpreted not to have extra-territorial effect?
Do you have any sense of how legal systems work?
Ah, but it is an offense in Cayman to practice Cayman law without a practicing certificate. And it is a breach of almost every jurisdiction’s rules to provide professional services which you are unqualified to provide. What would your insurers say if they were to discover you were not in fact practicing the law of England and Wales and were in fact advising on the laws of a country that you had never been to, let alone admitted to practice their laws? Come to think of it, what would the Law Society (if England is where you qualified) of you unlawfully practicing another jurisdiction’s laws?
We’ll, I have a practicing certificate and I don’t practice English law…. So?
In any event – you’re missing the basic point. Cayman Islands law does not apply to acts done entirely outside the Cayman Islands. Thus, someone advising on Cayman law in India is not in breach of Cayman criminal statute.
And the partners in Cayman that facilitate and reap the rewards of that unlawful practice? Are they beyond the jurisdiction of the court of which they are “officers?”
Again – it is NOT unlawful given the actions take place outside of Cayman. So no one here is reaping the rewards of unlawful behavior. You keep begging the question.
Even if it was, that’s not the way the legislation is written.
You can amend it to do so if you like, but then that is, in part, what the Act did – so not exactly a step forward for your position to have the whole thing shelved is it?
So if Cayman put in place a law that, say, made it a criminal offense to practice BVI law anywhere in the world, your view and that all BVI legal work would result in, in effect, money laundering?
Like most countries (and as an OT, perhaps even more than most countries) it is not open to the Cayman Islands to create a criminal offense that applies to those that do not operate in / are entirely outside the jurisdiction.
If you can’t grasp that, then there’s really not much to say…
Oh, I see. But it is perfectly OK for Canada, England, the United States, France, etc. etc. to control who practices their laws here?
It is an offense to practice Cayman Law without a practicing certificate. If you are indeed an officer of the Cayman Court, on what basis do you contend it is appropriate to commit (or facilitate the commission of) any such offense?
Money?
I am not being rude, but you honestly don’t understand the concept. Money has nothing to do with it.
Again – can you point to a statutory provision that makes the practice of Cayman law in Hong Kong a criminal offence?
s.10. Legal Practitioners Act.
No. That is not the effect of that provision. Not if you’re legally literate.
Not a fan of following the law, even a preference for breaking it, and yet you speak for law firms? About sums it up.
What on earth are you talking about?
The act envisaged putting in place a way to allow people to practice Cayman law legally overseas.
Either that’s a decent aim or not.
If not in your view, then you’re effectively putting the jurisdiction at a major disadvantage.
I never advocated breaking the law, and I don’t “speak for the law firms”. Basic reading comprehension is a worthwhile goal I think.
The unqualified practice of Cayman law is an offense. Multiple firms appear to be facilitating or directly engaging in its commission.
Please point to the statutory provision that outlines the criminal offense.
s. 10. Legal Practitioners Act.
https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction
Have a read through, and see if you can be honest with yourself here. There is absolutely no reasonable basis to expect that the Legal Practitioners Act should be read as falling within these sorts of limited exceptions.
You merely want to read it that way.
If you are right, why would any law firm find it necessary to seek and hold practicing certificates for anyone?
Ok. I’ll try and approach this in good faith.
It is, clearly, illegal for someone to practice Cayman law in the Cayman Islands without a certificate.
That does not mean that someone in Mongolia that advises on Cayman law is a criminal in Cayman.
It may be a breach of Mongolian laws, it may even be fraudulent, but otherwise, it is not a criminal offense.
Now, you could, as the Act did to a degree, impose criminal sanctions on locally based practitioners with respect to their firm’s overseas operations, but ultimately that’s not the current regime.
Claiming that uncertificated attorneys in Hong Kong are guilty of Money Laundering merely because they don’t have a certificate here is simply not legally accurate.
The fear of CIMA is not that will implement AML oversight (most firms have corporate services arms that CIMA already oversees)
The fear is that it will bring the same arbitrary, capricious, baseless, and senseless approach to the legal profession that it has elsewhere. CIMA invents requirements that are contradictory and without legal basis and does so without consultation or any warning. They act as if they are purely an adversary to the industry that contributes the vast majority of the government’s income rather than a partner in producing a modern, rationally regulated, and outward looking financial services sector that can continue to support these Islands for decades to come.
Consider it advance practice for the eventual arm to be added to CIMA: Cayman Tax Authority! They are all already practicing their future roles diligently.