CIRCUMSTANCES WHEN A BANK DIRECTOR CAN BE PERSONALLY LIABLE FOR MISCONDUCT OF HIS FINANCIAL INSTITUTION - HAMILTON RESERVE BANK

HELENE LEWIS, Legal Advisor Nevis Island Administration

As Hugh Sowards, the law school professor in my old class in Business Associations was fond of saying, " Directors must Direct," and as he wrote the casebook on corporations we all used, he definitely knew his subject, Most people incorrectly assume that the directors of a bank are not personally liable for misconduct of the financial institution that they are charged with supervising, but in truth and in fact, there are circumstances where liability does absolutely attach, and the HAMILTON RESERVE BANK scandal is one of them.

(1) Bank directors can be held personally liable for bank misconduct when they breach their fiduciary duties. They owe a strict duty of care and loyalty not only to shareholders but also to depositors and the public trust.

(2) Failure of oversight:Directors can be personally liable if they completely ignore "red flags" or repeatedly fail to address explicit warnings and criticisms about bank actions. Passive or intentionally inattentive board service can be legally construed as a breach of oversight duties.

(3) Criminal Conduct and Fraud: Directors face direct criminal and personal civil liability if they knowingly participate in illegal acts, such as falsifying bank books, hiding material financial facts, misappropriating assets, or committing securities fraud.

In the Hamilton Reserve Bank case, Director HOWARD A. LEWIS, a resident director of the bank, had first-hand knowledge of its daily operation, including all active litigation against the bank by depositors who were unable to receive their demand deposits upon request, as well as other claims against the bank. He is therefore personally liable, upon any of the bases detailed above. He also held the position of ENTERPRISE RISK OFFICER at the bank, due to his former experience in compliance and government service.

Furthermore, as a part of the financial incest that infects Nevis, Mr. Lewis' wife, HELENE LEWIS, is the LEGAL ADVISOR FOR NEVIS ISLAND ADMINISTRATION. An attorney, she is responsible for statutory compliance with the laws of that jurisdiction, as she must certainly was completely aware of the multiple complaints filed with Government regarding the bank's default in remitting funds to its depositors, as well as the attendant civil litigation. There is a presumption that she notified her husband of those problems, which of course he was painfully aware of by reason of his position.

Therefore, he is, by definition personally liable under any interpretation of the law; frankly, I am surprised that he has not, as yet, been named as a party defendant by any of the victims, but as the scandal further unfolds, it is likely that he will be drawn in. Any possible or potential civil or criminal liability of Helene Lewis, or any other government official in Nevis, is outside the scope of this article.