The Malta Independent 30 July 2021, Friday

Regulating the legal profession

Saturday, 19 June 2021, 13:24 Last update: about 2 months ago

Mark Said

Chamber of Advocates President Louis de Gabriele’s speech (“Clear that there is ‘no comprehensive plan or vision’ to regulate legal profession, lawyers lament”–  Malta Independent, 10th June) made interesting reading. He reiterated some fundamental aspects of the legal profession which can never be altered, no matter how much one may try and carry it to extremes, and at the same time called for certainty with regard to other lacking aspects.

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There is a fundamental distinction between a law graduate and an advocate. The former is one who has graduated from the University Law Course or a recognised law school. The advocate is one who, having graduated from a recognised academic institution, thus meeting the education requirements, subsequently successfully sits  for the bar examination and is warranted by the President of the Republic.

This examination, to my mind, should be a holistic one, testing the knowledge of shared legal principles, including constitutional law, as well as testing the candidate’s knowledge of the laws, rules, and regulations in effect at the time.

Subsidiarily, there should also be a Professional Responsibility Exam, which tests knowledge and understanding of legal ethics and the professional responsibilities of practicing lawyers.

Before being admitted, aspiring advocates should undergo a character and fitness evaluation and interview. The candidate would have to submit personal information regarding educational and employment history and residential and financial information. The candidate should also answer questions about academic infractions and disciplinary measures, criminal history and provide character references.

Candidates with criminal histories would still have a possibility to be admitted to practice law, though admission may be denied, especially if there is hard evidence of a history of dishonesty, such as crimes involving fraud or misappropriation of funds, a current history of untreated mental health-related problems or ongoing alcohol and substance abuse issues. Failure to be honest and candid in the character and fitness questionnaire and interview should be considered grounds for denial of admission.

There should be the additional requirement of post-admission continuing legal education for practicing lawyers. To remain a member of the bar in good standing, a lawyer should complete the periodic continuing legal education requirements to be adopted.

There should be a clear definition of what specific types of conduct would be considered to be practice of law. These typically include:

a)    Giving advice or counsel to others as to their legal rights or responsibilities,

b)    Drafting or completing legal documents or agreements affecting someone else’s legal rights,

c)     Representing someone else before a court or other formal adjudicative body, and

d)    Negotiating legal rights or responsibilities on behalf of another.

Serving in a neutral capacity as a mediator or arbitrator should continue to be allowed for a non-lawyer even though legal expertise may be required. Likewise, the law should continue to allow non-lawyers to represent someone in small claims tribunals and in certain administrative proceedings.

People working under the supervision of licensed lawyers could in practice also undertake certain legal services without bar admission. The supervising lawyer would be responsible to ensure that those conducting the law-related services meet the stands of ethics and professional responsibility applicable to lawyers. Thus, the lawyer will be responsible for any violations by those under supervision if he or she instructs or ratifies the conduct of the non-lawyer.     

One could improve and better define at law what constitutes a law firm and legislate for non-lawyer legal professionals who are qualified by education, training or work experience to perform specifically designated substantive legal work for which a lawyer is responsible. They could be employed by lawyers, law firms and government agencies, and perform legal services such as legal research, drafting legal documents, interviewing clients and witnesses, summarizing documents, analyzing court records and performing administrative functions for a law office. A paralegal should not be allowed to perform services which are considered to constitute the practice of law and should not establish attorney-client relationships, set legal fees, give independent legal opinions or advice to a client or represent a client before a court unless authorized by the court.

May rationality and good judgment prevail over hard-headedness and stubbornness.

 

Dr. Mark Said is an advocate

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