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Bar Council criticised by tribunal over lawyer complaint

Norman MacDonald (File photograph)

The Bermuda Bar Council has been slammed for its handling of a complaint against a lawyer accused of improper questioning of a witness.

A Disciplinary Tribunal decision written by Puisne Judge Charles-Etta Simmons, which dismissed the case, said the reaction to a cross-examination in court by Norman MacDonald had been blown out of proportion.

Mrs Justice Simmons said: “An inappropriate question, that was allowed by the trial judge at the time, and that was undoubtedly irrelevant to the line of questioning that was being pursued and might otherwise be regarded as an error in judgment by an overzealous attorney, could have been rectified by a simple apology by the respondent when taxed by the Professional Conduct Committee, particularly if, as the respondent has suggested, there was no intention to offend.”

Mr MacDonald, who at the time worked for the Attorney-General's Chambers, was criticised by then-Chief Justice Ian Kawaley in a 2016 judgment about his cross examination of Karen Clemons, an ex-teacher who sued the Minister of Education over her dismissal.

Mr Justice Kawaley said Mr MacDonald, who represented the Minister of Education in the civil case, quizzed Ms Clemons “quite irrelevantly and improperly” about her sexual orientation.

The Bar Council asked its Professional Complaints Committee to investigate Mr MacDonald's conduct and he pleaded not guilty to improper conduct contrary to the Barristers’ Code of Professional Conduct in June 2018.

It was alleged that Mr MacDonald unreasonably questioned a witness about her sexual orientation when he knew, or should have known, that it was irrelevant to the facts of the case and that the questions could, or would have, humiliated or embarrassed the witness.

But Mr MacDonald claimed the Bermuda Bar Association “ruined” his career and caused him “humiliation” and “loss of dignity” through its complaint.

A Disciplinary Tribunal last October dismissed the complaint against Mr MacDonald over the long delay in the case.

Mrs Justice Simmons, who sat with lawyers John Barritt and Wendell Hollis, said the Bar’s Professional Conduct Committee had a mandate to proceed in a “timely and expeditious manner”.

She added: “We do not propose to make any finding on who, if anyone, was at fault on these delays and the ones that proceeded them.

“Instead, we focus on the unfairness this has produced for the respondent, who is entitled to a fair hearing as expeditiously as possible and the effect that this has had on his health and mental wellbeing, as set out in the most recent letter from his treating psychiatrist.”

Mrs Justice Simmons said there had been “too many” departures from the legislated framework, including a failure to deal with the complaint quickly.

She added: “Complaints and hearings are meant to be dealt with promptly under the Act. That is what the legislative framework intends.

“That has not happened, here, and to proceed further would, in all the circumstances, be unfair and prejudicial to Mr MacDonald and, to reiterate, a violation of his constitutional right to a fair hearing within a reasonable time.”

Mr MacDonald has returned to Canada and now works in the litigation department of Toronto-based Rogerson Law Group.

He did not respond to a request for comment last night.

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Published February 12, 2021 at 8:48 am (Updated February 12, 2021 at 8:48 am)

Bar Council criticised by tribunal over lawyer complaint

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