The Malta Independent 27 November 2021, Saturday

Still unfit for purpose…

Sunday, 2 May 2021, 08:00 Last update: about 8 months ago

The recent amendments to the Code of Organization and Civil procedure have been hailed by the authorities as bringing to fruition the long-awaited regulation of the legal profession. The reality is somewhat different. Those amendments are merely a frail attempt to pay lip service to the regulation of the profession, while leaving it amid a 19th century law with only a glimpse of the 21st. It was when proposed as a bill, and remains as a law unfit for purpose, notwithstanding that a few proposals made by the Chamber were taken on-board.

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Laws are not, or rather should not, be made piecemeal – they need a purpose, a clear objective and direction, each provision needs to form part of a cohesive whole. This is what the Chamber proposed to government, but for reasons yet unknown and which remain inexplicable to the common sense of most, government has decided to take a few bits and pieces of those proposals, mesh them into its own proposals and created an outdated, redundant and unwieldy legislative framework, which goes absolutely nowhere, and indeed leaves the profession in the same predicament. This is the result of the rush with which government has proceeded to enact his piece of legislation, simply to have something, anything in place at a certain point in time because of pressures that are extraneous to the regulation of the profession itself. It is indeed unfortunate that after having pursued this objective for the last 12 years we actually end up in such a predicament.

What has driven those changes is not the genuine need or desire to regulate the profession but rather the need to meet the impending deadlines of MoneyVal. The Chamber has emphasised on more than one occasion that its own proposals, driven by the need to regulate the profession in the context of its challenges in a 21st century environment, would still have clearly and unequivocally attained the object of addressing the concerns that had been expressed by MoneyVal; indeed it would have done so in a more robust manner. So why the reticence?

This remains the main question that the Chamber has on several occasions posed to the GoM, but no reply has ever been forthcoming.

Let me just highlight some of the flaws in the new law:

(a)    It fails to regulate among others the way prospective law trainees are to do their practice before becoming eligible to sit for their warrant examinations. The Chamber had proposed a regulatory framework that would make sure that this is undertaken in a professional and supervised manner rather than the haphazard manner in which this is handled today, and which will remain given that the new law does not regulate this aspect.

(b)   Who will be responsible for conducting the warrant examination? The new law does not clearly provide for this, it provides that two judges shall examine the competence levels of candidates, but when, how and what goes into that examination, as well as who is responsible for it, remains an unknown. There is a dichotomy as to exactly who is responsible to ensure that an applicant for the warrant of an advocate meets the criteria under article 81 – is it the Committee for Advocates and Legal Procurators or something else?

(c)    Why has mandatory Continued Professional Development remained completely outside the ambits of this new law? Malta’s legal profession is probably the only one in the rest of Europe where CPD is not mandatory.

(d)   The law fails to regulate the provision of legal services and what they are, although there are some references to these in the code of Ethics and the old Code of police laws, it is fundamental that a new law being promulgated for the purpose of regulating the profession, ought to have made reference to this aspect in the context of a profession that has significantly evolved over the last century and sharply so in the last 20 years.

(e)    What exactly will be the role of the Committee? Was it the intention of making this committee the ultimate regulator of the profession? If it was, the law falls seriously short of such an objective.

If one were to listen to the speeches in the plenary session in Parliament when the bill was going through its second reading, every single member who took the floor, mentioned in no uncertain way how the profession has evolved today to tackle non-contentious matters out of court, emphasised the advisory nature of the profession and the manner in which, with the development of Malta as a business centre, advocates have evolved from the traditional litigation lawyer to the transactional lawyer and trusted advisor. Yet, the law does not reflect these sentiments, those were simply the speeches. The law fails to even recognise this notable evolution of the profession. Indeed, the very fact that the amendments were made to the Code of Organization and Civil Procedure are indicative of the very lack of appreciation of the message that this sends out.

That we continue to consider advocates simply as litigators in court and that all regulation of the profession is intended to deal with this aspect of being a lawyer is an approach that is today redundant, outdated and obsolete. Indeed, those Honourable members of parliament who made this point are right, but the law unfortunately does not reflect their speeches. In a time when most lawyers today are indeed not court lawyers, retaining the regulation of the profession within the precincts of the COCP is simply wrong in principle; it does not reflect the reality of the profession. The fact that one has to keep referring to the COCP, which understandably deals with the advocate’s function in court, denounces the outdated approach in which the GoM, and those advising it on this matter, have completely lost touch with the reality of the profession in the 21st century.

We need a law which recognises and acknowledges the role of the lawyer/advocate in a modern society as a trusted advisor to clients and not simply as the advocate in court; a law which indeed gives recognition to the work non-court lawyers are involved in. That anyone even considers that the COCP is the right tool to regulate the profession and does not realise that it is a priori completely inadequate to do so is indeed the prime reason why we believe that more has to be done to ensure a proper regulatory framework for the profession, which is not dependent exclusively on court work, but which effectively acknowledges the state of the profession today. We need a stand-alone legal instrument, which consolidates the regulatory framework of the profession; which takes into account the significant evolution within the profession; which considers issues such as limitation of liability; modern structures of law firms; mandatory continued professional development and a well-resourced and committed regulator.

These are just some of the main deficiencies in the law that we shall now have to deal with as a profession. The amendments made to the COCP are, with some exceptions, inadequate and fundamentally flawed. The Chamber will not be deterred from pursuing a more adequate regulatory framework for the profession, it strengthens its resolve to pursue its object, now (ironically) enshrined in these amendments themselves: to safeguard and protect the dignity, honour and reputation of the profession of an advocate and to encourage an independent, strong, diverse and effective legal profession; and to do so with greater vigour.

The Chamber remains determinedly of the view that this law is shallow, lacks focus and purpose and does little for the proper regulation of the profession in the 21st century. We shall vigorously pursue a deeper and more meaningful regulatory framework that the profession and the general public deserve. Now that the MoneyVal deadline seems to have been attained, the Chamber once again calls upon the Minister of Justice to commence serious discussions on a proper regulatory framework for the profession without having to wait another 12 years for any progress to be made.

 

Dr Louis de Gabriele, the Chamber of Advocates president 

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