The Bar Council of the Bar Association of Guyana notes with much concern the comments made by the Attorney General, the Hon Basil Williams SC MP, reported in Kaieteur News on 18 May 2018.
The Attorney General, in referring to the conduct of litigation by lawyers in private practice for the State, is reported to have said that criminal action needs to be taken against lawyers conducting such litigation and that he “believes that (lawyers) need to start being charged now”.
These statements of the Attorney General, in addition to ignoring the fact that it is the Director of Public Prosecutions, a constitutional office-holder, whose duty it is to determine when and under what circumstances persons should face criminal charges, may give the incorrect impression to the public that there is something wrong, sinister or unlawful with lawyers in private practice conducting litigation for the State
In reality, lawyers at the private Bar have always conducted litigation for the State in Guyana and throughout the Commonwealth, and continue to do so today. This practice is entirely proper and is used where lawyers in private practice have such skills, experience or specialist knowledge of discrete areas of law to enable them properly and successfully conduct litigation on behalf of the State.
Writing in 1973, Dr Mohammed Shahabudeen, then Attorney General, noted the practice in his book The Legal System of Guyana as follows:
In 1921 the Governor made it clear that King’s Counsel were expected to undertake prosecutions for the Crown at a nominal fee so as to free the Attorney General for more important advisory work. … Senior Counsel are probably still conscious of a special obligation to accept a brief from the state, but it is rather unlikely that they consider that they have to do it at cut rates.
The fact that the Attorney General has himself retained counsel in private practice from outside of Guyana to conduct litigation indicates that the practice of the State retaining lawyers in private practice to conduct litigation is both well established and continues today.
This was done by the Attorney General in relatively recently conducted matters such as SM Jaleel & Co Ltd and Guyana Beverages Inc v The Co-operative Republic of Guyana, Zulfikar Mustapha v Attorney General and The Attorney General of Guyana v Cedric Richardson.
It is clear therefore that lawyers who conduct litigation for the State commit no criminal conduct whatsoever by the fact of their conducting that litigation. It is also clear that it is neither improper nor unusual for lawyers in private practice to conduct litigation for the State.
The Bar Council therefore views the comments made by the Attorney General as an entirely unwarranted attack on the professionalism and the independence of the members of legal profession, unbecoming of a member of the Inner Bar.
It urges the Attorney General to strengthen methods of record keeping at the Attorney General’s Chambers, if there are difficulties in that regard, and to resolve issues concerning the conduct of litigation with those lawyers appearing for the State privately, with circumspection, and in a manner becoming of the standards of the profession.
Such a course of action will avoid bringing the legal profession in Guyana into disrepute, which is entirely undesirable from an office-holder who has traditionally been recognised in the Commonwealth with the unofficial and honorific title of Leader of the Bar.