• October 6, 2022
  • ychan
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This also raises other questions of interest to trustees. Given the difficulties, is it appropriate for a person in a fiduciary position, such as a trustee or director, to order someone who is not qualified under British Virgin Islands law to provide legal advice on the British Virgin Islands or to draft British Virgin Islands legal documents? There has probably always been the question of whether it could be a breach of their fiduciary duties; Admittedly, it is difficult for them to prove that they reasonably believed that the non-BVI lawyer was the best person to advise them on british Virgin Islands law. At least it has become more difficult now, but when the contract for these services may not be enforceable, it is difficult to see how it is not a breach of their duty. On the other hand, suppose that this person wrote a document negligently; If the contract is unenforceable, the customer cannot sue it for negligence. Even if it is enforceable, would they be covered by their professional liability insurance? It would depend on the terms of the insurance coverage, but there has to be a serious question as to whether insurers would generally cover someone for committing a criminal offense in another jurisdiction. At the very least, any doubt on this point gives the insurer a reason to try not to pay the policy if it tends to do so. The main provisions resulting from the amending laws regarding the admission and status of legal professionals are as follows: Other expected changes include provisions that will introduce a proportional system to limit the number of lawyers practising British Virgin Islands law outside the jurisdiction and a requirement that all legal documents be drafted by members of the British Virgin Islands. The definition of “practical law” in the PCPA is slightly circular in that it refers to the practice as a “lawyer” or corporation or the exercise of “counsel`s duties as recognized in any statute, whether before or after the commencement of the PCPA.” However, it is certainly no coincidence that such a general term has been used. It is believed that it must cover one of the following things, at least when it is made for reward (although it is not explicitly restricted in this way): The decision was rendered by the Eastern Caribbean Court of Appeal in the Crown Treasury case on June 1. One of the parties sought reimbursement of the costs related to the work of the lawyers employed by the Hong Kong branch of its British Virgin Islands lawyers. These foreign lawyers have not been allowed to practice in the British Virgin Islands.

The Court of Appeal ruled that the costs of the work they were doing were not recoverable. It overturned the lower court`s 2020 ruling that costs were reimbursable if the work was supervised by lawyers from the British Virgin Islands. Proposals to introduce legislation in the British Virgin Islands (the “British Virgin Islands”) to reform the regulation of the legal profession have been in place for several years. But recent concerns about non-BVI law firms practicing British Virgin Islands law, their likely negative impact on the local profession and the financial services sector on the islands in general, not to mention the obvious risks inherent in people who do not have the expertise for legal advice, have put it at the top of the British Virgin Islands government`s agenda. The result is the Legal Profession Act, 2015 (the “PCPA”), which came into force on May 11, 2015 but is not yet in force. The main areas covered by the PCPA are: The Legal Profession Act of 2015 of the Virgin Islands Code of Ethics in Schedule 4 governs the professional practice, etiquette, conduct and discipline of a lawyer. Garkusha and Shrimpton make it clear that the fees of legally qualified and unapproved persons in the British Virgin Islands are no longer refundable as common law withdrawals, with the exception of fees related to the provision of evidence from foreign law experts. Gany confirms that work performed by unlicensed persons who are not legally qualified may be forfeited again in accordance with subsection 18(3), as opposed to conduct equivalent to “acting as a lawyer.” The foreign qualification of these persons is not decisive. Kwok confirms that direct supervision of unauthorized persons who are legally qualified by a person authorized by the British Virgin Islands is not relevant to recoverability, so a detailed examination of the work performed by such persons is not necessary when performing lawful work. The administrative tasks performed by these persons are considered ancillary tasks to assist in the conduct of legal disputes. In March 2015, the British Virgin Islands legislator passed the Lawyers Act 2015.

There is still some ambiguity (and more than a few myths) about the exact wording and when it will come into effect, but once it comes into effect, it will change the way law firms in the British Virgin Islands recruit foreign employees. Much of the details have not yet been resolved by the underlying regulations that have not yet been adopted. What is clear, however, is that it will be more difficult for people to authorize and practice British Virgin Islands law, and lawyers outside the British Virgin Islands will only be allowed to practice British Virgin Islands law if they work for a company that has an office in the British Virgin Islands. Of course, for people who do not take into account the new law, there will be problems with professional conduct and remuneration. There are also criminal penalties — a minimum sentence of $10,000 and a minimum prison sentence of two years or both — that apply to anyone who is not a British Virgin Islands lawyer and who practices British Virgin Islands law on behalf of or through a British Virgin Islands lawyer who is authorized to act. There are limited transitional provisions: Anyone who was authorized to act as a British Virgin Islands lawyer immediately prior to the coming into force of the PCPA is in possession of a lawyer`s certificate valid until January 31, 2016 (provided it comes into force in 2015). However, after that date, they will need an internship certificate and will only be able to get one if they do one or the other: I remember very well that just a few days after accepting a new role as a lawyer in the British Virgin Islands, I was rushed to the British Virgin Islands. It was a two-day trip to admit me as a British Virgin Islands lawyer before the imminent passage (at least that`s what they thought) of the Lawyers Act. It was December 2006 and the controversial and much-discussed law on lawyers was finally enacted on May 11, 2015. We are still waiting for confirmation of the effective date, so it is not quite the law yet, but we are closer than ever.

DISCLAIMER: Due to the generality of this update, the information contained in this document may not be applicable in all situations and should not be implemented without specific legal advice based on certain situations. The Legal Profession Act 2015 (the “PCPA”) introduces various changes, such as a new code of ethics to be followed by Lawyers in the British Virgin Islands and the requirement that anyone practicing British Virgin Islands law in or outside the British Virgin Islands have a Practitioner`s Certificate. Aside from some anomalies that need to be corrected, the general premise of the legislation is good for the judiciary as it is intended to prevent persons with little or no experience with the jurisdiction or without a permanent connection to the jurisdiction from providing legal advice to the British Virgin Islands, which can only raise the standard of British Virgin Islands advice provided worldwide. The PCPA has established a list of legal professionals (the “Roll”), and any person whose name is not on the list does not have the right to exercise the law of the British Virgin Islands inside or outside the British Virgin Islands. Although the names of all persons currently admitted as british Virgin Islands lawyers are automatically added to the list, it will be more difficult to be included in the list once the PCPA is in force. In Yao Juan v. Kwok Kin Kwok and Another[13] (“Kwok”), the Court of Appeal had to determine whether the fees of foreign lawyers who were not admitted to the British Virgin Islands could be recovered if they were performing legal work as employees of the Hong Kong office of a law firm with a significant presence in the British Virgin Islands.[14] The court agreed with the approach taken in the Gany case (although obiter) and ruled that the direct supervision of these lawyers by lawyers admitted by the British Virgin Islands made no difference. The court appeared to reinforce the scope of the prohibition in subsection 18(3) (as interpreted by Garkusha and Shrimpton) by concluding that there was no need to dissect the work done after it had been determined that unlicensed lawyers were “acting as legal professionals.” The court also held that “all administrative tasks would be ancillary to everything they do if they were carried out to support the conduct of the dispute.” In addition, it is also common for law firms to employ subordinates and other unqualified paid persons to perform certain work at a lower cost.